Criminal Jurisdiction over Perpetrators of Ship-Source Pollution : International Law, State Practice and EU Harmonisation [1 ed.] 9789004210004, 9789004209992

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Criminal Jurisdiction over Perpetrators of Ship-Source Pollution

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution International Law, State Practice and EU Harmonisation By

Alla Pozdnakova

Leiden  •  boston 2013

Library of Congress Cataloging-in-Publication Data Pozdnakova, Alla.   Criminal jurisdiction over perpetrators of ship-source pollution : international law, state practice and EU harmonisation / By Alla Pozdnakova.    p. cm.  Includes bibliographical references.  ISBN 978-90-04-20999-2 (hardback : alk. paper) — ISBN 978-90-04-21000-4 (e-book) 1.  Marine pollution—Law and legislation. 2.  Shipping—Environmental aspects. 3.  Criminal jurisdiction. 4.  Liability for oil pollution damages. I. Title.   K3591.2.P69 2012   344.04’6343—dc23

2012028773

ISBN 978-90-04-20999-2 (hardback) ISBN 978-90-04-21000-4 (e-book) University of Oslo, Law Faculty, Scandinavian Institute of Maritime Law Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

To my mother Ludmila Gilova To my husband, Maxim, and our daughters, Jelena and Elizaveta

Contents Preface  .............................................................................................................. xi List of Abbreviations  . .................................................................................... xiii Part One  Introduction  ................................................................................ Part Two  Prescriptive Criminal Jurisdiction Over the Perpetrators   of Ship-Source Pollution  ........................................................................... 1 Introduction  ......................................................................................... 2 The Flag State’s Jurisdiction Under International Law to Prescribe Sanctions for Ship-Source Pollution  .............................. 2.1 Introduction  . .............................................................................. 2.2 Environmental Obligations of Flag States Under International Law  . ..................................................................... 2.3 The Flag State’s Discretion with Respect to the Criminalization of Discharge Violations  ............................... 2.4 International Rules Determining Environmental Responsibilities and Sanctions for Ship-Source Pollution  3 Prescriptive Criminal Jurisdiction Over Pollution Violations Involving Foreign Vessels  .................................................................. 3.1 Introduction  . .............................................................................. 3.2 Criminal Liability for Pollution and the Right of Innocent Passage Through the Territorial Sea  . ..................................... 3.2.1 Overview  ......................................................................... 3.2.2 Does Criminalization of Pollution Violations Hinder Innocent Passage?  ........................................... 3.2.3 Who May Be Subject to Criminal Liability for Ship-Source Pollution?  ................................................. 3.3 UNCLOS Provisions on Jurisdiction in the Exclusive Economic Zone  .......................................................................... 3.4 Criminal Liability for Pollution Violations on the High Seas and in Other States’ Waters  ............................................ 3.4.1 Overview  ......................................................................... 3.4.2 Environmental Crimes Perpetrated by Nationals  ...

1 23 23 25 25 29 35 42 51 51 55 55 58 62 65 69 69 72

viii   Contents 3.4.3 Pollution by Foreign Perpetrators on the High Seas and in Other States’ Waters  ........................................ 3.5 Application of Territorial Jurisdiction to Discharge Violations Perpetrated Outside a State’s Territory  .............. Part Three  Criminal Enforcement Jurisdiction in Ship-Source   Pollution Cases  ........................................................................................... 4 Introduction  ......................................................................................... 5 Interdiction of Foreign Vessels and Crews for Pollution Violations  ............................................................................................ 5.1 Introduction  . .............................................................................. 5.2 Inspection and Detention of Foreign Vessels in the Territorial Sea  ............................................................................. 5.3 Inspection and Detention of Foreign Vessels in the EEZ  .... 5.4 Interdiction of Foreign Vessels on the High Seas  . .............. 6 Jurisdiction with Regard to Criminal Prosecution in Ship-Source Pollution Cases  . ............................................................ 6.1 Introduction  . .............................................................................. 6.2 Flag State Enforcement Jurisdiction in Pollution Cases  ..... 6.3 Jurisdiction to Punish Foreign Perpetrators of Ship-Source Pollution  ............................................................... 6.3.1 Overview  ......................................................................... 6.3.2 Discharge Violations in Internal Waters and the Territorial Sea  ................................................................ 6.3.3 Discharge Violations in the EEZ  . .............................. 6.3.4 Port State Jurisdiction and Extraterritorial Pollution Violations  . .................................................... 6.3.5 Allocation of Concurrent Jurisdiction to Prosecute a Discharge Violation Affecting Several Coastal States  . .............................................................................. 7 Safeguards Against Excessive Enforcement by Non-Flag States  . 7.1 Introduction  . .............................................................................. 7.2 Rules Applying to the Investigation and Detention of Foreign Vessels  . ......................................................................... 7.3 Prompt Release of Vessels and Crews  . .................................. 7.4 Suspension and Restrictions on Institution of Proceedings  ................................................................................. 7.5 Rights of the Crew in Criminal Pollution Cases  ..................

77 87 95 95 96 96 100 106 111 115 115 120 129 129 130 138 149 155 158 158 162 165 176 185

Contents   ix

Part Four  Criminal Jurisdiction over Perpetrators of Ship-Source   Pollution in Selected National Systems and the European Union  .... 8 Introduction  ....................................................................................... 9 The European Union  ........................................................................ 9.1 Introduction  . ............................................................................ 9.2 EU Rules on Criminal Liability for Ship-Source Pollution in the Light of MARPOL  . ...................................................... 9.2.1 Overview  ....................................................................... 9.2.2 Definitions of Negligence in the Directives and in MARPOL  ...................................................................... 9.2.3 Who May Be Subject to Penalties for Discharge Violations?  . .................................................................. 9.2.4 The Erika and Criminal Penalties for Accidental Pollution  ....................................................................... 9.3 EU Rules of Criminal Jurisdiction in Ship-Source Pollution Cases  ......................................................................... 9.3.1 Overview  ....................................................................... 9.3.2 EU Rules on the Jurisdiction of the State of Nationality  . .................................................................. 9.3.3 Coastal and Port State Jurisdiction under the Directives  ...................................................................... 9.3.4 EU Rules on Criminal Jurisdiction in the Light of the UNCLOS Safeguards  ........................................... 10  Kingdom of Norway  ......................................................................... 10.1 Introduction  . .......................................................................... 10.2 Criminal Liability for Ship-Source Pollution  .................... 10.3 Rules of Criminal Jurisdiction over Perpetrators of Pollution  .................................................................................. 11 The Russian Federation  .................................................................... 11.1 Introduction  . .......................................................................... 11.2 Criminal Liability for Ship-Source Pollution  .................... 11.3 Criminal Jurisdiction over Perpetrators of Pollution  ......

201 201 209 209 215 215 218 225 228 236 236 237 239 250 255 255 256 270 288 288 290 296

Part Five  Summary and Conclusions  ...................................................... 313 List of Sources  ................................................................................................. International Documents  .......................................................................... Treaties  .................................................................................................... Regional and Bilateral Agreements  . ................................................... International Court of Justice  . ............................................................ International Tribunal on the Law of the Sea  ..................................

325 325 325 325 326 326

x   Contents European Court of Human Rights  ..................................................... IMO Resolutions  . .................................................................................. European Union  ......................................................................................... Treaties  .................................................................................................... Secondary Law  . ...................................................................................... Court of Justice of the European Union  ........................................... Other  ........................................................................................................ Kingdom of Norway  .................................................................................. Laws  . ........................................................................................................ Regulations  . ............................................................................................ Cases  ........................................................................................................ Travaux Préparatoires  ........................................................................... The Russian Federation  ............................................................................. Federal Statutes  ...................................................................................... Federal Regulations  ............................................................................... Plenum of the Supreme Court of the Russian Federation  ............. Cases  ........................................................................................................ Other Cases  . ...........................................................................................

326 326 326 326 327 327 327 328 328 328 329 329 329 329 330 331 331 331

Bibliography  .................................................................................................... 333 Index  ................................................................................................................. 341

Preface This monograph represents my work as a post-doctoral research fellow at the Scandinavian Institute of Maritime Law (“the Institute”) of the Faculty of Law at the University of Oslo, from February 2008 until summer 2012. It contributes to research being carried out within the context of the Safety and Security at Sea project that is being run by the Institute and led by Professor Erik Røsæg. Although I have worked independently on the writing of this work, its contents have been inspired by research being conducted as part of this project. In particular, the choice to focus on the legal systems of Norway and Russia, as well as the European Union rules on criminal sanctions for ship-source pollution, is explained by the project’s focus on the Northern Areas and the relationship between the United Nations Convention on the Law of the Sea and EU law. However, I hope that this work has relevance beyond these regions and trust that it will be of interest to readers worldwide. Completing this monograph within the time limitations imposed by a post-doctoral position at the Institute has proven to be a very ambitious goal. It would have been impossible without the support and encouragement of my colleagues and family. Some of my colleagues deserve particular thanks for reading and commenting on parts of the draft: Professor Erik Røsæg (the Institute), Dr. Henrik Ringbom (the Institute/formerly of the European Maritime Safety Agency), Professor Rosa Greaves (University of Glasgow/ the Institute), stipendiat Irina Fodchenko (the Institute), and Karin Bruzelius (former Justice of the Supreme Court of Norway/the Institute). I would also like to thank Dr. Henrik Ringbom and Dr. Malgorzata Nesterowicz for welcoming me at European Maritime Safety Agency and, in particular, for giving me access to the Agency’s study on the Member States’ implementation of the EU directive on sanctions for ship-source pollution. I am very grateful to Morten Lund Mathisen and the other lawyers at the Oslo office of law firm of Wikborg Rein (offshore shipping group), who provided me with an office during winter 2012, for their hospitality and stimulating conversation. I am very grateful to my language editor Caroline Glicksman for her excellent work correcting the language in the manuscript. Sofia Lazaridis (the Institute) also deserves thanks for assistance with compiling and correcting the list of sources.

xii   Preface I am, of course, solely responsible for all my opinions or any mistakes concerning my presentation or understanding of the law. The law is stated as of 12 June 2012. I am very much indebted to my family for their support and patience throughout these years. Alla Pozdnakova Oslo, 12 June 2012

List of Abbreviations AG Advocate General Am. Crim. L.Q. American Criminal Law Quaterly Am. Soc. of Int. Law American Society of International Law Am. Soc. of Int. Supplement to the American Journal of International   Law Sup. Law Brit. Y.B. Int’l L. British Yearbook of International Law Cal. W. Int’l L.J. California Western International Law Journal CMI Comité Maritime International ECHR European Convention on Human Rights ECtHR European Court of Human Rights ECR European Court Reports EEA Agreement on the European Economic Area EU European Union Harv.Int’l L.J. Harvard International Law Journal HR Høyesterett (Supreme Court of Norway) ICJ International Court of Justice I.C.J.Rep. International Court of Justice Reports I.L.M. International Legal Materials ILR International Law Reports IMO International Maritime Organization Int’l J. Marine & International Journal of Marine and Coastal Law   Coastal L. ISM Code International Safety Management Code IWGMP Intergovernmental Working Group on Marine Pollution J.Mar.L.&Com. Journal of Maritime Law and Commerce J. Transnat’l L. & Journal of Transnational Law and Policy   Pol’y LMCLQ Lloyd’s Maritime and Commercial Law Quaterly Maastricht J.Eur.& Maastricht Journal of European and Comparative   Comp.L. Law MARPOL International Convention for the Prevention of Pollution from Ships

xiv   List of Abbreviations MLAANZ Journal Australian and New Zealand Maritime Law   (now Austl.&N.ZMar.L.J.) Journal ND Nordiske Domme i Sjøfartsanliggende (law reports containing selected awards and judgments from Danmark, Norway, Sweden, Finland and Iceland) NOU Norges Offentlige Utredninger (Official Norwegian Reports) NCA Norwegian Court of Appeal NSC Norwegian Supreme Court OECD Organization for Economic Co-operation and Development OJ Official Journal of the European Union O.M.S. Overenkomster med fremmede stater (compilation of Norway’s international agreements) Ot.prp. Proposition to Odelsting (the largest of the two divisions of the Norwegian Parliament, this division is repealed) P.C.I.J. Permanent International Court of Justice RG Rettens Gang (law report series of all Norwegian courts other than the Supreme Court) RHDI Revue Hellenique de Droit International Rt Norsk Retstidende (law report series containing all the decisions of the Norwegian Supreme Court) Syracuse J.Int’l L.&Com. Syracuse Journal of International Law and Commerce TEU Treaty on the European Union TFEU Treaty on the Functioning of the European Union UNCLOS United Nations Convention on the Law of the Sea Unif. L. Rev. Uniform Law Review U.N.T.S. United Nations Treaty Series U.N.Y.B. Int’l L. Comm’n United Nations Yearbook of the International Law Commission

Part One Introduction This monograph analyses international law issues pertaining to the exercise under the law of the sea of criminal jurisdiction over the perpetrators of ship-source pollution. It also examines the rules and practices of selected legal systems with respect to the adoption and enforcement of criminal sanctions for discharge violations committed by sea-going vessels. Some of the most notorious pollution cases in history have taken place at sea. Accidents such as those involving the Exxon Valdez (USA, 1989), the Erika (France, 1999), and the Prestige (Spain, 2002) have resulted in significant oil pollution of coastal areas. This has spurred coastal and port States to make continual efforts to improve maritime safety regulation and ensure more stringent environmental enforcement. More specifically, these accidents also resulted in prosecutions in the respective jurisdictions, confirming once and for all that the shipping sector is not immune from criminal liability for environmental violations. Although individual accidents involving ships, particularly large oil tankers, may have devastating effects on the marine environment, a major proportion of ship-generated pollution is caused by intentional discharges of polluting substances. Oil is a common pollutant, but is not the only pollutant transported and discharged by ships. Other examples include garbage, sewage and dangerous cargoes, all of which may be spilled accidentally or dumped intentionally into the sea to avoid the cost of port reception facilities. Criminal prosecutions for environmental violations are nothing new, but the effective criminal prosecution of perpetrators of ship-source pollution is problematic for several reasons. Firstly, the relevant criminal laws must be designed and applied in such a way as to minimise the occurrence of pollution offences, i.e., to function as a sufficient deterrent for potential offenders, rather than as measures of retribution. This raises numerous questions for national legislators, who have to define the discharge violation in question, decide on the range of persons potentially subject to criminal penalties, and determine the type and level of these penalties etc.

2   Part One Secondly, the effective prosecution of environmental offences in shipping requires not only the adoption of comprehensive criminal law provisions, but also a system for monitoring compliance with discharge standards. This is a difficult task in practice due to technical impediments, the likely remoteness of the ship from the enforcement authorities and, in all likelihood, attempts by the persons involved to conceal the violations by tampering with the ship’s equipment and falsifying the ship’s documentation. The difficulties encountered by the coastal authorities are frequently aggravated by the complex ownership and management structures commonly found in the shipping sector, which may enable those persons responsible for causing the pollution to remain anonymous or otherwise unavailable for prosecution.1 This may at least partly explain why criminal sanctions are commonly imposed on the ship’s master and other members of the crew, i.e., the persons most directly linked to the ship, even though real responsibility for the pollution incident may well lie elsewhere. Thirdly, criminal law and policy are essentially national in nature and remain largely within the competence of individual States. By contrast, shipping is international: a vessel flagged in one State may sail anywhere in the world. Should a pollution incident arise, it will very likely occur in a foreign State’s waters. In addition, the crew may come from third States and have no real connection with either the flag State or the State affected by the pollution. As a result, pollution incidents involving sea-going vessels usually affect the interests of several States. This means that an international approach is required not only to the definition of a pollution crime but, importantly, to the investigation and prosecution of such crimes. Despite these considerations, international law does not prescribe to any great extent how States should shape their domestic criminal law provisions and practices with respect to ship-source pollution offences. This leaves States free to choose whether to criminalize pollution offences and related safety infringements under their domestic laws and whether to prosecute the perpetrators. However, should a State decide to exercise its criminal jurisdiction over a perpetrator of ship-source pollution, it must act within the limits established under international law. Generally, a State is deemed to possess criminal jurisdiction under international law when it possesses both the competence to prohibit and lay down penalties for certain conduct (prescriptive jurisdiction), and the competence to detain, prosecute and punish the perpetrator of the offence (enforcement

For an overview of ownership and control structures in shipping see, e.g., OECD (2003).

1

Introduction   3

jurisdiction).2 Although a State’s prescriptive and enforcement jurisdiction are closely related, their scopes do not necessarily coincide. For example, a State’s prescriptive jurisdiction may, in principle, have a broader (extraterritorial) reach than the State’s power to enforce its laws (which will generally be limited to the State’s own territory).3 This book addresses both these aspects of a State’s criminal jurisdiction over the perpetrators of ship-source pollution. With regard to prescriptive jurisdiction under international law, we will examine the substantive and geographical scope of a State’s jurisdiction to criminalize discharge violations in shipping. Does international law impose any limitations on a State’s power to enact criminal sanctions for discharge and other safety violations? Are there any restrictions on the geographical reach of a State’s criminal law? For example, may a State extend the scope of application of its rules on criminal liability to pollution violations by foreign ships outside its borders? The discussion will also examine the scope of a State’s jurisdiction with respect to the various stages of enforcement, i.e., stopping, inspecting and detaining the delinquent vessel and her crew, investigating the case and, if appropriate, imposing criminal sanctions. We will also examine the international law principles for allocating jurisdiction in cases where several States assert competing claims for jurisdiction to prosecute (concurrent jurisdiction). A central issue for a State asserting criminal jurisdiction is to determine whether its exercise of jurisdiction will encroach upon the jurisdiction of another State, which may have stronger grounds for prosecuting the perpetrator. Unfortunately, the international law rules governing the exercise of jurisdiction may well be difficult to ascertain. At least as a starting point, there are certain well-established principles of jurisdiction in international law that also apply to shipping. Thus the right to exercise prescriptive and enforcement criminal jurisdiction with respect to conduct committed within a State’s territory is generally viewed as inherent to a State’s territorial sovereignty and, as such, can only be limited either by agreement with other States or by general principles of international law. By contrast, the exercise of enforcement measures within a foreign State’s territory (assuming the latter has not granted specific permission to this end) constitutes a clear violation of international law. However, the position

On the concept of the international jurisdiction of States generally, see Mann (1973), p. 2 et seq. Some authors single out adjudicative jurisdiction, i.e., the jurisdiction of the courts to hear a case and render a judgment: see, e.g., Bodansky (1997), Akehurst (1972–1973). 3 See, e.g., Mann (1973), p. 7. 2

4   Part One in international law on a State’s rights to criminalize specific conduct and prosecute perpetrators is not as clear-cut with regard to foreign ships and crimes committed by either foreigners or the State’s own nationals outside the State’s borders. On the one hand, the enactment of criminal sanctions applicable to conduct committed beyond the legislating State’s territory (i.e., the exercise of extraterritorial prescriptive jurisdiction) may easily encroach upon other States’ jurisdiction. States have generally been cautious about enacting laws with extraterritorial reach and in any case would carefully assess their enforcement in practice. On the other hand, national criminal laws that are strictly territorial in their scope of application are not sufficient for preventing unlawful conduct in international sectors. As Berge pointed out in 1932, “[m]odern criminals have little concern for political boundaries except to the extent that such boundaries are of assistance in effecting a criminal purpose.”4 This observation is highly relevant to international shipping because a ship—and the persons responsible for her operations—may be involved in pollution offences anywhere she sails, including on the high seas and in foreign waters. If ships were not made subject to the extraterritorial jurisdiction of any State, they would operate in legal “vacuum” and be free to pollute without any legal consequences whatsoever. By entrusting the flag State with the main authority over the vessels flying its flag, the international community has resolved, at least partially, the problem of jurisdictional conflicts where offences involve ships on international voyages. A flag State’s laws apply to its vessels irrespective of where they sail, and (nearly always) only the flag State is entitled to interdict its vessels on the high seas and to impose sanctions for violations involving its vessels. Yet a jurisdictional regime based on exclusive flag State jurisdiction has considerable weaknesses in so far as the protection of the marine environment is concerned. Firstly, as is discussed later in this work, international law imposes relatively limited obligations on the flag State in so far as prescription and enforcement are concerned. Secondly, in certain cases a nonflag State may have far greater motivation to institute proceedings to impose penalties on a delinquent foreign vessel, notably in a case of pollution affecting that State’s environment. While the flag State enjoys special privileges in relation to its vessels on the high seas, the doctrine of national sovereignty requires foreign vessels to obey the domestic regulations of any State on customs, environment, health and fishing while in that State’s waters or ports. The crucial question in this

Berge (1931–1932), at p. 238.

4

Introduction   5

respect concerns the limits imposed by international law on the reach—both substantive and geographical—of coastal and port States’ rules with regard to foreign ships. May a State criminalize ship-source pollution in the waters outside its territorial sea or, as the case may be, exclusive economic zone (EEZ)? Some may argue that it is impractical to enact extraterritorial reach for domestic criminal law, as perpetrators with no territorial links to the legislating State can simply ignore it. On the other hand, such links may be established in the future if, for example, the perpetrator arrives in the State’s territory, either voluntarily (i.e., by calling at one of its ports) or by involuntarily (i.e., is ordered while in transit to a port of the coastal State). At this point it will become essential for the State’s authorities to have an appropriate legal basis in domestic law on which to institute proceedings in respect of the violation.5 The case of the Lotus (1935),6 examined in more detail later in this work, revealed a lack of clarity in international law regarding the status of flag State jurisdiction on the high seas. In that case, the Permanent Court of International Justice also noted that international law left a wide measure of discretion to States in so far as the extraterritorial scope of their national laws was concerned. In practice, however, States do not exercise unlimited prescriptive or enforcement jurisdiction over offences committed outside their borders. On the contrary, a State will usually require either the conduct or the perpetrator to have certain links with the State or to have endangered certain interests the State wishes to protect. In general, States have not been enthusiastic about adopting an international multilateral treaty on rules of criminal jurisdiction.7 In the maritime field, however, attempts to adopt a binding international treaty have been more successful. Thus the International Convention for the Unification of Certain Rules relating to penal jurisdiction in matters of collision or other incidents of navigation (Brussels, 1952)8 provides that the flag State has exclusive jurisdiction to impose penalties on the

See also Ryngaert (2008), p. 24, on the relationship between prescriptive and enforcement jurisdiction. 6 The S.S. Lotus, 2 P.C.I.J. Reports 38 (1935). 7 In 1935 the American Society of International Law proposed the codification of such rules in a Draft Convention on jurisdiction with respect to crime (proposal published in Am. Soc. of Int. Law Sup., Vol. 29 (1935), 439–442). Since the Lotus, the International Court of Justice has not had any opportunity to rule on a dispute between States directly concerning rules of jurisdiction in international law. 8 Concluded in Brussels on 10 May 1952, entered into force on 20 November 1955, 53 Am.J.Int’l L. 536 (1959). 5

6   Part One vessels flying its flag and their masters (jurisdiction over the master is shared with his State of nationality) in the case of a “collision or other incident of navigation” at sea.9 The 1952 Brussels Convention attempts to deal with the possible implications of the verdict in the Lotus for flag State jurisdiction on the high seas, as well as to reduce the level of controversy between States with respect to international rules of jurisdiction in cases involving maritime casualties. However, the convention does not specify whether it applies only to incidents caused either negligently or intentionally, or whether it also applies to cases where no criminally punishable fault is involved (strict liability). It also makes no specific mention of criminal jurisdiction with respect to incidents that result in pollution. It simply precludes non-flag State jurisdiction over foreign vessels and crews involved in maritime incidents outside their internal and territorial waters, regardless of whether pollution or other damage has been caused to the coastal State. The key international instrument governing State jurisdiction over the perpetrators of ship-source pollution is the United Nations Convention on the Law of the Sea (Montego Bay, 1982, hereinafter referred to as UNCLOS).10 UNCLOS has been ratified by the vast majority of States and is a truly global convention on the law of the sea. It also codifies customary rules of the international law of the sea which all States, even if they have not ratified this treaty (e.g., the USA), must comply with.11 In contrast to its predecessors,12 UNCLOS also contains a set of provisions governing States’ jurisdiction in ship-source pollution cases, namely, Part XII “Protection and Preservation of the Marine Environment”. Article 211 “Pollution from vessels” of Part XII, Section 5 “International rules and national legislation to prevent, reduce and control pollution of the marine environment” addresses prescriptive jurisdiction over the perpetrators of pollution. Section 6 of Part XII sets forth provisions on the enforcement jurisdiction of flag, port and coastal States.

A provision to this end was also included in the 1958 Geneva Convention on the High Seas, cited in footnote 12 below. 10 Entered into force on 16 November 1994. 11 Generally on UNCLOS see, e.g., Churchill and Lowe (1999). 12 I.e., the 1952 Brussels Convention; the Convention on the High Seas (concluded in Geneva on 29 April 1958, entered into force on 30 September 1958), see 450 U.N.T.S. 11, p. 82; the Geneva Convention on the Territorial Sea and the Contiguous Zone (concluded in Geneva on 29 April 1958, entered into force on 10 September 1964), 516 U.N.T.S. 205; the Convention on the Continental Shelf (concluded in Geneva on 29 April 1958, entered into force on 10 June 1964), 499 U.N.T.S. 311.  9

Introduction   7

UNCLOS confirms the exclusive jurisdiction of the flag State over its vessels on the high seas. Nevertheless, the jurisdictional regime of Part XII UNCLOS is not based exclusively on flag State jurisdiction. On the contrary, coastal and port States are given significant—albeit not unlimited—powers over foreign-flagged perpetrators of pollution. Many provisions of UNCLOS codify customary rules of international law that had also been included in earlier treaties (e.g., the obligation to pay due regard to the interests of other States when exercising the freedoms of the high seas, the right of innocent passage through the territorial sea, and the obligation to protect the marine environment from pollution).13 However, some of the central provisions on jurisdiction in ship-source pollution cases set forth in Part XII are novelties in the international law of the sea. Notably, Article 218 UNCLOS on port State jurisdiction (examined later in this work) authorizes a port State to institute proceedings in respect of pollution involving a foreign ship on the high seas on its own initiative, regardless of whether the port State’s own environment has suffered harm. UNCLOS also clarifies—and extends—coastal States’ enforcement jurisdiction in cases of pollution involving foreign ships in transit through their coastal waters. Thus it expressly authorizes coastal States not only to detain such ships in their ports and territorial seas (a right that was well-established prior to UNCLOS) but empowers them to interdict foreign ships in transit through their EEZs, albeit subject to stricter conditions. Importantly, UNCLOS also determines the geographical breadth of, and the legal regimes applicable to, the territorial seas and EEZs of coastal States. Prior to UNCLOS, there was no general agreement on these questions.14 Thus the provisions of Part XII UNCLOS are directly relevant to criminal proceedings instituted with regard to ship-source pollution violations. As such, these provisions will be examined in more detail in this work. However, UNCLOS, including Part XII, is vague or silent on a number of important questions likely to arise in criminal cases involving discharge violations by ships.

I.e., the 1958 Geneva Conventions, op. cit. On customary rules in the law of the sea, see Churchill & Lowe (1999), pp. 13–22 and p. 332. See also Birnie, Boyle and Redgwell (2009), at p. 387, who consider that “the degree of acceptance of [UNCLOS and MARPOL] and the consensus expressed by states in negotiating the environmental provisions of the 1982 UNCLOS suggest that its articles on the marine environment are supported by a strong measure of opinio juris and represent an agreed codification of existing principles which have become part of customary law.” 14 Complete agreement has not yet been achieved as some (few) States’ claims deviate from general practice. For an overview of claims to maritime zones, see, e.g., Churchill and Lowe (1999). 13

8   Part One Firstly, although some provisions of Part XII may be construed as implying that criminal proceedings are not, in principle, prohibited by UNCLOS, Part XII speaks only generally of “proceedings to impose penalties”. There is no express reference to criminal proceedings or criminal penalties. The decision on whether and how to punish a pollution violation is generally left to the legislating State. Secondly, States that do decide to enact criminal penalties for pollution will not find any guidance in UNCLOS concerning the substantive scope of their criminal liability provisions. The treaty does not specify what pollution should be considered unlawful (a “violation”) and, as such, potentially criminally punishable. In this respect, UNCLOS grants a special role to a “competent international organization”, through which States shall agree on international anti-pollution rules and discharge standards in shipping. This role is undertaken by the International Maritime Organisation (IMO), which adopts international conventions and develops non-binding recommendations for States in the area of maritime safety.15 The central IMO convention for the discussion in this work is the International Convention for the Prevention of Pollution from Ships 1973, as amended by the Protocol of 1978 (MARPOL).16 MARPOL contains provisions that inter alia set forth discharge standards and also requires States to adopt adequately severe sanctions for violations of these standards. Although MARPOL does not expressly criminalize ship-source pollution, some legal writers refer to this convention as a source of “indirect” criminal law (for environmental offences).17 Furthermore, although UNCLOS makes the scope of a coastal State’s right to interdict a foreign vessel in transit through its maritime zones conditional on whether the pollution is “wilful and serious”, “substantial”, or has caused “major damage” to the environment, the treaty does not specify criteria for determining which, if any, of these categories a particular pollution incident falls into. UNCLOS also does not specify whether any fault (intention or negligence) is required to make conduct criminally punishable or whether strict (nofault) liability applies. There is also no express mention of the persons who may be made subject to penalties for pollution violations. Although the treaty On the IMO generally see, e.g., Tan (2006), p. 75 et seq. Although they are not considered in this monograph, conventions and other documents adopted by the International Labour Organisation (ILO) are also generally relevant to maritime safety. 16 The two mandatory annexes to MARPOL, Annex I (Prevention of pollution by oil) and Annex II (Regulations for the control of pollution by noxious liquid substances in bulk) entered into force on 2 October 1983. 17 Mégret (2011), at p. 198. 15

Introduction   9

refers consistently to “vessels” that have “violated laws and regulations” on discharges, logic requires it not to be the vessel as such that is punished, but the persons or organizations responsible for her operations. In so far as persons are concerned, UNCLOS makes occasional mention of the “master” and the “crew” (who in practice are the persons most commonly punished for pollution violations). However, it does not set forth any rules or limitations with respect to the other persons or entities responsible for the ship’s safety (i.e., the shipowner, ship operator or ship management company, classification society, charterer etc.). At this point it is worth noting that some provisions of MARPOL set forth criteria exempting certain discharges from the general prohibition, and these may be understood as imposing limitations on national criminal law rules. The relationship between UNCLOS and MARPOL will be examined in more detail later in this work. Thirdly, UNCLOS does not regulate the types and levels of penalties that may be imposed for discharge violations. The only provision to address the question of penalties is Article 230 UNCLOS. This article precludes the application of non-monetary penalties for discharge violations by foreign ships outside the coastal State’s territorial sea, and only allows such penalties for pollution within the territorial sea so long as the pollution is wilful and serious pollution. These restrictions apart, States are free to enact criminal (or other) penalties for pollution violations. Fourthly, although UNCLOS is rather specific as to the circumstances in which a coastal State has a right to interdict foreign ships, it does not set forth a comprehensive set of international rules on the scope of the prescriptive and enforcement jurisdiction of non-flag States over perpetrators of pollution. For example, Part XII UNCLOS addresses the jurisdiction of only three categories of States—flag States, port States and coastal States—and is silent on the jurisdiction of the States of nationality of the seafarers or shipowner and of the State where the shipping company is registered. Furthermore, UNCLOS offers only a partial resolution to the situation where two or more States assert jurisdiction to prosecute a perpetrator of pollution. For example, UNCLOS does not set forth the principles and criteria to be applied in order to resolve a conflict of jurisdiction between two or more coastal States affected by the same pollution incident. By omitting to regulate these questions expressly, UNCLOS does not limit or extend the rights of States under international law, instead obliging them to fill in these gaps in conformity with the general rules of jurisdiction under international law. It should also be noted that UNCLOS does not deal in any great detail with the legal position of persons prosecuted for ship-source pollution. A dispute concerning a violation of UNCLOS will have to be resolved by the States involved (e.g., the flag State and the port State). Individuals cannot rely

10   Part One directly on UNCLOS provisions in order to argue that the prosecuting State has exceeded its powers under the treaty. UNCLOS also does not address cross-border cooperation by police in ship-source pollution cases, a topic that is also outside the scope of this work. Mechanisms facilitating coordination between States, legal assistance in criminal matters, the recognition of foreign criminal judgments, extradition, and so forth are generally dealt with by special bilateral and multilateral agreements between States. These agreements are not of direct relevance for this work as they do not address the international law principles of criminal jurisdiction on their merits, and do not establish any pre-conditions for or limitations on States’ criminal jurisdiction. The wording of UNCLOS leaves a significant measure of discretion to States in so far as the criminalization and prosecution of ship-source pollution violations are concerned. This means that it is also necessary to examine whether any limitations on States’ jurisdiction exist in other sources of international law, such as judicial decisions, soft law and State practice. With regard to the rulings of international courts, so far the Lotus has been the only judgment directly to address the rules of jurisdiction under international law. However, the judgments of the International Tribunal for the Law of the Sea (ITLOS) in prompt-release cases shed light on the jurisdiction and obligations of coastal States with regard to the detention and prompt release of foreign vessels. The disputes submitted to ITLOS mainly concern the prompt release of vessels detained for fishing violations, but as the discussion later in this work shows, the interpretation in these judgments of the applicable international rules is also relevant to cases involving ship-source pollution violations. The European Court of Human Rights has also examined cases involving alleged human rights violations through the unjustified and disproportionate exercise of powers against foreign vessels and their crews. In this author’s view, the Court’s reasoning may help with the interpretation of UNCLOS in relation to limits on coastal States’ enforcement powers. Apart from examining the relevant provisions of UNCLOS and the few existing cases heard by the international courts, this work also discusses national laws and practices that illustrate how States apply international law principles of criminal jurisdiction in ship-source pollution cases and interpret the relevant provisions of UNCLOS. The legal systems whose national laws and practices have been selected for more detailed examination in this work are Norway and Russia. The European Union (EU) rules on criminal sanctions for ship-source pollution will also be discussed. A brief explanation of the reasons for selecting these systems and the approach adopted when analysing their rules and practices is useful at this point.

Introduction   11

As a starting point, the coastal States of the EU, together with Norway and Russia, represent a relatively large number of States with very long contiguous coastlines and an impressive number of ports. In addition, Norway and Russia share a maritime border in the High North (the Barents Sea region). This makes these two States natural partners for cooperation on questions of maritime safety and the prevention of ship-source pollution. By adopting harmonized policies on the protection of the marine environment, States can contribute very significantly to the effective enforcement of anti-pollution rules in shipping. In addition to MARPOL and the other key IMO treaties, the EU States, Norway and Russia participate in a range of regional instruments on maritime safety, vessel traffic monitoring and pollution prevention and control.18 Norway and Russia also cooperate in the areas of oil pollution preparedness, maritime rescue and vessel traffic monitoring in the Barents Sea.19 All these regional and bilateral agreements facilitate the detection of oil spills, the tracing of suspect vessels and the combating of accidental pollution at sea. As none, however, includes provisions determining the scope of the participating States’ jurisdiction to prosecute the perpetrators of pollution (or imposing on them an obligation to do so), they are not directly relevant for this work. Since the EU States, Norway and Russia are all parties to UNCLOS, in general these States will follow the same rules for determining whether they possess prescriptive or enforcement jurisdiction over the perpetrators of ship-source pollution. However, as pointed out above, UNCLOS does not address in detail all the questions that may arise in relation to the exercise of criminal jurisdiction. The discussion in this work of the national rules and practices of the selected systems will illuminate the differences and similarities between national approaches to questions of criminal jurisdiction over the perpetrators of ship-source pollution. At this point it is necessary to explain certain restrictions on the national rules and practices examined in this work. Firstly, national practice can only serve as evidence of State practice as a source of customary international law if such practice is generally recognised and accepted as law (opinio juris) by States. Thus, only a national rule that is founded on a practice accepted

Several regional cooperation frameworks have been established over the years by States with the objective of enhancing various aspects of the protection of the marine environment: e.g., Helcom (the Baltic Sea), the Bonn Agreement (the North Sea), OSPAR (the North-East Atlantic). Norway, Russia and the EU port States also cooperate on port State control within the framework of the Paris Memorandum of Understanding on port State control. 19 E.g., bilateral agreements on maritime safety between Norway and Russia: see Pozdnakova (2009). 18

12   Part One by a large number of States (albeit not necessarily by all of them) and which emanates from States’ understanding that such practice is binding under international law, expresses a rule of international law.20 Secondly, a State’s laws and regulations, which will usually be one of the most easily accessible sources in practice, will not present a complete picture of the State’s practice on a particular matter. It is also necessary to examine other sources, such as the actual practice of public authorities, court cases and relevant policy statements by the competent authorities.21 These sources are not always easily accessible, especially those concerning the practice of public authorities and diplomatic communications between the States.22 A decision to apply (or not to apply) criminal sanctions for a pollution violation will be taken by a State in the light of a variety of political and economic considerations, such as international comity and reciprocity concerns, the seriousness of damage caused to the State’s environment or other relevant interests, and the practical opportunities for enforcement in any given case. The absence of an effective enforcement mechanism (a problem characterized by “flags of convenience”) may also explain the poor rate of enforcement. It can be rather difficult to distinguish between practices that reflect the true opinio juris of a State and those that reflect only pragmatic concerns. In some cases, it can even be difficult to distinguish between a practice that complies with international law and a practice that violates it. The sources examined in this work consist mainly of the relevant national statutory provisions, preparatory materials (travaux préparatoires), court practice and publications by legal scholars. It should be noted, however, that the selected legal systems—those of the EU (and its individual Member States), Norway and Russia—attach rather different weight to these sources and have their own peculiarities in respect of legal interpretation methods. Accordingly a brief overview of the relevant legal systems and their legal methods is required. Russia is a civil (continental European) law country.23 The main sources of written (statutory) law are (1) the Constitution of the Russian Federation (1993) and the constitutions of the regional subjects; (2) federal constitutional laws; and (3) federal and regional laws and legal acts (enacted by,

See, e.g., the Nicaragua [1986] ICJ Rep. 14 and Continental Shelf (Libya v Malta) [1985] ICJ Rep. 13. See also Malanczuk, p. 39. 21 On State practice generally see, e.g., Malanczuk (1997), p. 39 et seq.; Churchill & Lowe (1999), p. 7 et seq. 22 Some information on relevant practices can also be found in scholarly works, reports by governmental and private organizations, newspaper archives, and electronic databases, such as Lloyd’s Reports and Westlaw. 23 On the Russian legal system and law sources generally see Butler (2009). 20

Introduction   13

respectively, the Federal Assembly and regional legislative bodies, the President of the Russian Federation, the federal or regional government, and the relevant ministries or departments).24 Generally, the Constitution is the highest source of written law, with federal laws superseding conflicting provisions in regional laws and governmental acts.25 Statutes are the principal source of Russian law.26 The regulation of federal transport (which would generally include international shipping), the foreign and international affairs of the Russian Federation, the legal regimes regulating and protecting the territorial sea, EEZ and continental shelf, as well as criminal law and justice fall within federal competence, whereas environmental protection comes under the competence of the regional legislators.27 The discussion in this work addresses only federal legal acts, as these are the relevant Russian sources for determining questions concerning jurisdiction in international shipping and criminal liability for all offences, including ship-source pollution. Federal laws are supplemented by various subordinate legal acts (decrees, regulations, orders, instructions etc.) issued by the federal government and the competent ministries (e.g., the Ministry of Transport and the Ministry of Natural Resources and Ecology) and their agencies. Importantly, the Constitution provides that “the recognized principles and norms of international law and international treaties of the Russian Federation shall be an integral part of its legal system”. Thus international law rules (assuming they are binding on Russia, as would be the case, e.g., with a ratified treaty) will generally supersede conflicting provisions of Russian law.28 The legal regimes regulating the Russian maritime zones (internal waters, ports, territorial sea and EEZ) and general provisions on Russian jurisdiction over vessels navigating within these zones are set forth in federal laws that in

It should also be noted that Soviet laws and regulations continue to apply in the Russian Federation to the extent they have not been repealed, although the number of such acts is declining. 25 For a more detailed discussion of the hierarchical relationship between Russian legal acts see, e.g., Butler (2009). 26 Butler (2009), p. 93 et seq. Note that Butler (2009), at p. 90, begins his discussion of Russian law sources with jus [pravo], i.e., higher law, which originates from elsewhere than the State or the government. The concept of jus in Russian law is the subject of debate and is not directly relevant for the discussion in this work. 27 See, respectively, Articles 71 and 72 of the Constitution. 28 Article 15(4) of the Constitution. More specific provisions on the status of international treaties are set forth in federal law # 101–ФЗ of 15 July 1995 On the International Treaties of the Russian Federation. Note that Russia also generally succeeded to the international agreements of the Soviet Union. On international law in the Russian legal system generally, see, e.g., Butler (2009), pp. 693–696; Marochkin (2007); Zimnenko (2007). 24

14   Part One general are based on UNCLOS. Provisions setting forth criminal sanctions and determining the geographical reach of Russian criminal law with respect to all offences, including ship-source pollution, are laid down in one federal statute, the Criminal Code of the Russian Federation, which is examined later in this work. How are statutes and other legal acts interpreted by Russian lawyers when they need to ascertain a legal rule?29 The main method employed is the grammatical interpretation method, by which lawyers establish the contents of a rule by examining the literal meaning of the relevant provision, as well as by comparing it with other provisions of the statute and with the statute as a whole (systematic interpretation).30 The purpose of a statute and its historical context may also be examined. However, as Vereshchagin points out, the historical and political background of a statutory rule is seldom given weight in present Russian practice, although it may become more important in future.31 In fact, it is very difficult to understand the historical and political background of Russian statutes and to identify the legislative intent with sufficient certainty because the preparatory materials (e.g., draft laws, legislative proposals, speeches etc.) tend to be either relatively brief or completely unobtainable. In any case, preparatory materials are not considered as a source of law in their own right in the Russian legal system. Judges will of course play an important role in the interpretation and application of legal rules in practice, especially in criminal cases. The Russian federal court system consists of three types of courts: courts of general competence (courts of ordinary jurisdiction), arbitrazh (or commercial) courts and the Constitutional Court. Criminal and administrative cases involving environmental violations are heard by the courts of general competence. In ship-source pollution cases, the court of first instance is the district (city) court, whose verdicts may be appealed to the regional court.32 The

For a comprehensive overview of the rules of interpretation in the Russian legal system (concerning judicial interpretation), see Vereshchagin (2007). 30 Vereshchagin (2007), p. 23. While literal interpretation is particularly important in criminal law, interpretation by analogy is not permitted in criminal cases (Article 3(2) of the Penal Code). 31 Vereshchagin (2007), p. 27. He explains this inter alia by reference to the fact that Russian legislative history is very recent, with the majority of legal acts having been adopted in the post-Soviet period. (This also holds true with regard to criminal law provisions, although these have been amended a number of times since the Criminal Code was adopted.) 32 Note that justices of the peace function as the court of first instance for certain categories of criminal cases (excluding ship-source pollution) where the penalty does not exceed three years’ imprisonment: federal law # 7-ФЗ of 17 December 1998 On the Justices of the Peace 29

Introduction   15

Supreme Court is the court of appellate and cassation instance for lower instance courts.33 Cases involving commercial or economic disputes are heard by the arbitrazh courts, which are headed by the Supreme Arbitrazh Court.34 Although the arbitrazh courts do not hear criminal cases, some of their decisions, which are examined later in this work, are relevant. For example, the arbitrazh courts have imposed administrative sanctions for violations of environmental safety standards in shipping and, on at least one occasion, have also examined the compatibility of a national regulation with an international standard laid down in MARPOL. The role of court practice in the Russian legal system is controversial. On the one hand, court practice is not a formal source of law in Russia.35 On the other hand, the Supreme Court and the Supreme Arbitrazh Court are authorized to “examine and summarize court practice and, in order to ensure its homogeneity, to issue explanations on questions of application of legal acts of the Russian Federation.”36 Thus the decrees of the Plenum of these courts, with which (even if they fall short of actual law-making) courts of lower instances are generally expected to comply, at least clarify and provide guidance on the interpretation of Russian law. Various questions concerning the interpretation of criminal law, including the application of criminal liability provisions to environmental crimes, have been addressed by the Plenum on several occasions.37 The position of international law in the Russian legal system has also been clarified in a decree.38 It should be noted, however, that

of the Russian Federation. Other categories of cases are heard by military courts, including cases concerning pollution crimes committed by the armed services. 33 The structure and competence of the Russian courts are regulated generally in federal constitutional law # 1-ФКЗ of 31 December 1996 On the Court System of the Russian Federation. The structure and competence of the courts of general jurisdiction are regulated in the federal constitutional law # 1-ФКЗ of 7 February 2011 On Courts of General Jurisdiction of the Russian Federation. For a more detailed overview of the structure of the Russian courts, see also Butler (2009), Vereshchagin (2007). 34 Federal constitutional law # 1-ФКЗ of 28 April 1995 On the Arbitrazh Courts of the Russian Federation. See also generally Butler (2009), p. 184 et seq. 35 See generally Butler (2009). But see also Vereshchagin (2007) who examines the development of judicial law-making in Russia. 36 On the Court System of the Russian Federation (cited in footnote 33 above), Article 9(4)(1), and the corresponding Article 10(1)(5) of the law On the Arbitrazh Courts, author’s translation. 37 E.g., Resolution No. 14 of 5 November 1998 # 14 “On court practice with respect to the application of legislative acts on liability for ecological violations”. 38 Resolution No. 5 of 19 October 2003, “On the application by the courts of general jurisdiction of the commonly recognised principles and norms of international law and the

16   Part One the wording of the Plenum’s decrees is usually advisory, e.g., the Supreme Court “recommends”, “draws attention to”, etc. Some legal scholars point out that court practice is becoming increasingly important in Russian legal analysis and for the development of Russian law.39 In particular, Naumov has pointed out that “one cannot do without judicial practice when classifying crimes” and “the criminal law is augmented by real content only through judicial practice in respect of concrete cases. Each new judicial decision enlarges . . . or narrows the law enforcer’s concept of the content of a criminal-law norm.”40 It remains to be seen what place court practice will have in the Russian legal system in the future. Currently, problems with the use of Russian court practice to interpret statutory provisions arise from the scarcity of relevant cases, the scanty quantity of published judgments, and the generally terse wording of judgments, which do not reproduce all the aspects of the judge’s reasoning. At the same time, court cases do illustrate the Russian courts’ interpretation and application of criminal liability provisions. In this author’s view, an examination of such judgments as are available in a relevant category of cases is useful for the understanding of the relevant statutory provisions. In any case, the implementation of international law principles of jurisdiction may hardly be determined merely by reading law texts and examining the few available cases. For this reason the author has also reviewed publications by Russian scholars on the law of the sea. Often these contain not only the opinions of the individual writers, but also provide an insight into the general Russian position on the interpretation of international law rules on jurisdiction. Although legal doctrine is generally not recognized in Russia as a source of law, it should not, in this author’s view, be ignored entirely.41 Apart from the Russian legal system, this monograph also examines the rules and practices of the Kingdom of Norway with regard to criminal international treaties of the Russian Federation”, available in English at the home page of the Supreme Court http://www.supcourt.ru (English) under “Documents”. 39 See generally Butler (2009). See also Vereshchagin (2007), at p. 117, who identifies four categories of legal precedents in Russian law: precedents of interpretation and gap-filling (most common), (2) precedents arising out of judicial review (increasingly common), (3) precedents of discretion, and (4) law-finding precedents (rarely found). 40 Naumov (2004), cited from Butler (2009), p. 105. 41 In addition, legal doctrine as a source of international law is recognized by the International Court of Justice: see Article 38 of the Statute of the International Court of Justice referring to “the teachings of the most highly qualified publicists of the various nations”. See also Butler (2009), p. 113. Several monographs and articles on aspects of Russian law relevant to the issues referred to in this book have been written or translated into English: e.g., Butler (2009), Vereshchagin (2007), Kovalev (2004).

Introduction   17

jurisdiction over the perpetrators of ship-source pollution. Like Russian law, the Norwegian legal system is based on civil law traditions. However, Norwegian and Russian law sources and legal method differ in several significant respects.42 Written Norwegian law consists of the Constitution (the highest-ranking statute), statutes adopted by Parliament, regulations issued by the “King” (the government) and the competent departments (ministries).43 In contrast to the Russian approach, Norwegian rules on jurisdiction and criminal sanctions for pollution violations are set forth not only in the Penal Code but also in a number of special statutes examined later in this work. Generally, a Norwegian lawyer will ascertain a legal rule not simply by examining the relevant statutory texts according to their priority, but also by analysing, interpreting and balancing a number of relevant sources.44 Notably, Norwegian legal writers tend to speak of “source-of-law factors”, rather than “sources of law”.45 Apart from statutes, these source-of-law factors include preparatory materials (travaux préparatoires), case law (court practice), the practice of public authorities, legal opinions and doctrine and “equitable considerations” (fairness). All of these factors will be examined and given more or less weight (or no weight at all) according to their relevance to the case in question.46 The Norwegian court system consists of the Supreme Court, courts of appeal (lagmannsrett) and district courts (tingrett), which are the courts of first instance. All these courts have general competence to hear all types of cases.47 In contrast to the evolving nature of Russian views on the importance of court practice as a source of law, the Norwegian approach in this respect is well-established. Firstly, Norwegian judges enjoy significant discretion to interpret a statute where its formulations are not clear-cut or where it is necessary to resort to a flexible (discretionary) interpretation (e.g., where the law envisages sanctions

For a discussion of Norwegian law, see, e.g., Johs. Andenæs (2000) and Eng (1993) (both in English). See also Lilleholt (2009) (in Norwegian). A comprehensive overview of Norwegian law sources in English can also be found in Bertnes (2007). 43 Andenæs (2000), p. 2 et seq. 44 Ibid. 45 See, e.g., Andenæs (2000); Helgesen/Eckhoff (2001). 46 See Andenæs (2000), p. 23 et seq. who also notes that the principles for assessing the relevant factors are still somewhat uncertain. 47 The Supreme Court’s Appeals Committee, which is classified as a separate court, decides on the admissibility of appeals. There is also a Court of Impeachment (riksrett), which is not relevant for this work. 42

18   Part One for conduct that is not “reasonable”, but leaves open the criteria for establishing “reasonableness”). Determining the sentence appropriate for a particular criminal offence is another example of an area where the courts will have to analyze the rules and the facts of the individual case before deciding on the type and level of penalty to be imposed, always within the limits envisaged by the applicable statutory provision.48 Secondly, Norwegian court practice is viewed in Norwegian legal doctrine as one of the source-of-law factors. This view shares certain similarities with the common law notion of precedent. It is not uncommon for Norwegian courts to refer to earlier cases as a source of law, and a judicial decision on a question of law may be seen as a “manifestation” of a general rule and, as such, may have significant weight attached to it by a court in a later case.49 The Norwegian Supreme Court’s rulings are a particularly important source-of-law factor.50 As a starting point, the lower courts will be more tightly bound by earlier decisions of the Supreme Court than the Supreme Court itself, which may, on certain conditions, interpret the law differently in a new case.51 Under the Courts of Law Act, however, cases of “special importance”, such as cases potentially involving a deviation from a legal interpretation previously established by the Supreme Court, will be decided by the grand chamber of the Supreme Court (11 judges instead of usual five). In addition, in exceptional cases, all the Supreme Court judges (the plenum) will sit together to decide a case.52 Judgments by the plenum will carry special weight for the subsequent interpretation of the law. In contrast to the Russian Supreme Courts, judges of the Norwegian Supreme Court may have dissenting opinions, and these will be included expressly in the text of the judgment. Judgments with a dissenting opinion or opinions, especially those where two (out of the five) judges disagreed with the majority, will carry less weight for future court practice. However, the presence of dissenting opinions will generally not affect the weight of a judgment issued by the plenum or the grand chamber.53

Andenæs (2000), pp. 29–31. Logically, Russian judges are also entitled to exercise a certain degree of discretion, so in this respect the difference between the Norwegian and Russian approaches may rather concern the scope of judicial discretion. 49 For a nuanced discussion of the role of precedent in the Norwegian and English systems see Eng (1993). See also Andenæs (2000). 50 All the Norwegian Supreme Court’s verdicts and decisions are published in the gazette Norsk Rettstidende (Rt) and are available in electronic format at LOVDATA. 51 Andenæs (2000), at p. 57. 52 Law No. 5 of 13 August 1915 (Lov om domstollene (domstolloven)). 53 Lilleholt (2009). 48

Introduction   19

The practice of the lower courts may also provide useful insights into Norwegian law, but will carry much less weight as a source-of-law factor than a Supreme Court ruling.54 In any event, the Supreme Court will not consider itself bound by such decisions, although it may attach some importance to a well-established and consistent practice of the lower courts.55 In addition, the preparatory materials for Norwegian statutes usually contain rather detailed accounts of the objectives and intended scope of the proposed legislation, as well as the political reasons for adopting the particular provisions. Before a legislative proposal is submitted to Parliament, a report is usually prepared containing an overview of the existing law, the factual and political background, and suggestions for useful changes in the existing statutes. Such reports are usually published as Official Norwegian Reports (NOU). Legislative proposals submitted by the government to the Parliament also tend to be relatively detailed and to argue why the law needs to be changed.56 Apart from their purely informative value, these preparatory materials can also be examined to determine the legislator’s intended purpose and content of a legal rule, especially where a statute is relatively new.57 Apart from Norwegian and Russian law, this work also examines EU rules on criminal jurisdiction over the perpetrators of ship-source pollution. The EU is obviously a quite different entity from either Norway or Russia, as it is not a single State but an organization of 27 States that possesses a legal personality and has competence to adopt rules binding on its Members within the limits of the competence regulated in the Treaties.58 In particular, this competence includes harmonization within the common transport policy of the national laws of Member States.59 As is examined in more detail later in this work, the EU has adopted directives requiring its Member States to introduce penalties, including criminal penalties, for ship-source pollution.60 As a party to the Agreement on the

Decisions of the Courts of Appeal are published in Rettens Gang (RG) and are mostly available at LOVDATA. Some decisions of the courts of first instance are also published. 55 Lilleholt (2009). 56 E.g., the proposal for a new Penal Code contains a discussion of the Code’s jurisdictional provisions. These are examined later in this work. 57 Andenæs (2000), p. 47 et seq.; Lilleholt (2009). 58 Since the Lisbon Treaty entered into force on 1 December 2009, the EU has been founded on two treaties: the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). On the EU generally see, e.g., Craig and de Búrca (2011). 59 Now governed by Title VI TFEU. 60 The original Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements was amended by Directive 2009/123/EC. 54

20   Part One European Economic Area (EEA),61 Norway is also obliged to implement the provisions of these directives. In general, regional measures may not be sufficient to give useful guidance on the interpretation of a global treaty such as UNCLOS.62 Arguably, however, by harmonizing and developing its Member States’ national laws, the EU may contribute to the further development of international law rules of criminal jurisdiction with respect to the pollution of the marine environment.63 This work focuses on the EU directives on sanctions for ship-source pollution. A review of individual EU Member States’ rules and practices on criminal jurisdiction with regard to pollution by ships is outside the scope of this work.64 However, since enforcement jurisdiction, including the authority to prosecute and impose criminal punishment in ship-source pollution cases, continues to lie with national authorities and courts (rather than with international or EU authorities and courts), the examination of national practices can give a very useful insight into the exercise in practice of criminal jurisdiction by Member States. For this reason the author refers to available sources on national practices and, in particular, examines the case of the Erika. This case, which concerned the imposition of criminal penalties by the French courts for a notorious pollution accident in 1999 in French coastal waters, raises a number of issues relevant for the discussion in this work. Although, as pointed out above, the EU does not interfere with individual Member States’ criminal enforcement jurisdiction over the perpetrators of ship-source pollution, EU directives have a significant effect on the prescriptive jurisdiction of the Member States. As is examined in more detail later, Member States must take certain legislative steps, as prescribed in the directives, including the enactment of criminal laws with extraterritorial scope. How should the Member States interpret the directives in order to transpose them correctly into their national laws? As a starting point, the Member States are bound to implement the directives in the light of their purpose (“as to the result to be achieved”), but remain free to choose the form and method of implementation.65 The directives in question are very clear as

OJ [1994] L 1, p. 3. On the EEA generally see Seiersted og Arnesen (2011), Müller-Graff and Selvig (eds) (1997). 62 See, e.g., Boyle (2005). 63 In addition, the candidate States, including Croatia (acceding country), and Iceland and Turkey (candidate countries) have also undertaken to approximate their national laws to the EU acquis. 64 A study of national laws and practices on sanctions has also been conducted by the European Maritime Safety Agency (EMSA, 2010, unpublished). 65 Article 288(3) TFEU. 61

Introduction   21

to their ultimate objective, i.e., to ensure that adequately severe penalties, including criminal penalties, for discharge violations are enacted in the national laws of the Member States. Such penalties must apply not only to violations in the Member States’ internal waters and territorial seas, but also in their EEZs and on the high seas. At the same time, as is examined later in this work, the directives also contain provisions that require more careful assessment by the Member States, such as, for example, the rules concerning the applicable standard of fault. In addition, the directives also permit Member States to adopt stricter rules than those envisaged therein. The Member States must also transpose the requirements of the directives in compliance with UNCLOS and MARPOL. Thus, a Member States will violate its obligations under EU law not only if it fails to implement the directives properly, but also if it transposes the directives in such a way as to contravene UNCLOS, other treaties or international law generally.66 The ultimate authority for the interpretation of EU law lies with the Court of Justice of the European Union, whose task is to “ensure that in the interpretation and application of the Treaties the law is observed.”67 In particular, the Court of Justice may give preliminary rulings at the request of the national courts of the Member States, either on the interpretation of EU law or on the validity of acts adopted by the institutions.68 It should be noted that the court interprets EU law not only by examining the wording of the relevant provisions, but also by looking at the entire surrounding context. The court then construes the provisions in the way most likely to further what, in the court’s view, the provisions sought to achieve.69 Although the court’s method of interpretation is sometimes described as purposive or teleological, there is no doubt that it goes beyond seeking the precise purpose of the authors of the text. Certainly the court generally attaches little significance to the preparatory materials.70 In principle, the case law of the court creates precedents for all the national courts of the EU Member States. It is irrelevant that a particular judgment is addressed only to one of these courts (i.e., the court which requested the ruling).71 The court’s case law may also shed light on the contents and

The EU is a party to UNCLOS, whereas the individual Member States are parties to both UNCLOS and MARPOL. For the relationship between EU and international law, see generally Craig and de Búrca (2011), p. 338. 67 Article 19 (1) TEU. 68 Article 19 (3) (b) TEU. 69 Craig and de Búrca (2011), p. 64. 70 Ibid. 71 Case 66/80 International Chemical Corporation v. Amministrazione delle Finanze dello Stato [1981] ECR 1191. See also Craig and de Búrca (2011), p. 453. 66

22   Part One interpretation of the directives discussed in this work. The court has not yet had occasion to examine the compatibility of a national implementing measure with the directives. However, the court did have an opportunity to rule on the compatibility of the provisions of the original directive on sanctions for ship-source pollution with UNCLOS and MARPOL, although in the event it decided that it could not assess the validity of the directive in the light of these conventions.72 The judgments of the court are usually quite concise and do not provide an exhaustive account of the court’s reasoning on a particular question. In contrast, the Advocates General (AG) are usually more thorough in their “reasoned submissions” (opinions), which generally contain a comprehensive account of the law governing all aspects of the case, as well as the AG’s opinion as to the outcome. Thus, even though an AG’s opinion will be written prior to the Court’s ruling and does not bind the Court, an examination of the AG’s opinion may shed light on a difficult-to-interpret judgment.73 We will now continue our discussion of the international law rules on criminal jurisdiction over the perpetrators of ship-source pollution. In addition to this Introduction, the discussion consists of four parts. Part Two examines international rules on the scope of prescriptive criminal jurisdiction over the perpetrators of ship-source pollution. Part Three deals with criminal enforcement jurisdiction and States’ authority under international law to interdict and prosecute perpetrators of ship-source pollution. Part Four examines the rules and practices of the EU, Norway and Russia on criminal liability and jurisdiction over the perpetrators of ship-source pollution. Part Five summarizes the findings of the previous parts and draws conclusions.

See the case of Intertanko, examined in Chapter 9. Craig and de Búrca (2011), p. 62.

72 73

Part Two Prescriptive Criminal Jurisdiction Over the Perpetrators of Ship-Source Pollution 1  Introduction The discussion below focuses on the scope of States’ prescriptive jurisdiction to criminalize ship-source pollution. Prescriptive criminal jurisdiction is the competence of States, under international law, to define certain acts, or omissions, as unlawful and to adopt domestic law provisions applying criminal penalties to such prohibited activities. It is a well-established legal principle that no one may be found guilty of a criminal offence on account of an act or omission which did not constitute a criminal offence under national or international law at the time when it was committed (nullum crimen, nullum poena sine lege).1 In contrast to civil trials, where domestic conflict-of-law rules may authorize or even require the application of foreign law by the court, lex fori will always apply in criminal cases.2 This means that a State’s courts will only be able to impose criminal sanctions on the perpetrators of ship-source pollution if a provision to this end is enacted in that State’s own criminal law regardless of where the pollution was perpetrated. Thus, a court that considers criminal penalties to be an appropriate form of retribution for a spill may not rely on the provisions of another State’s domestic criminal law (e.g., the law of the coastal State

  See, e.g., Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, concluded in Rome, on 4 November 1950, entered into force on 3 September 1953). See also Case C-308/06 Intertanko and others v. Secretary of State for Transport discussed in Section 9.2 below, para. 40 of the judgment, where the European Court of Justice (ECJ) confirms that the principle of legality is “one of the general legal principles underlying the constitutional traditions common to the Member States” and is a “specific expression of the general principle of legal certainty”. 2   See, e.g., Akehurst (1972–1973), at p. 179. 1

24   Part Two affected by the spill).3 The existence of a clear basis for criminal liability for ship-source pollution in the domestic law of a State is indispensable if a municipal court is to adjudicate a case and impose criminal penalties on the perpetrators of ship-source pollution. There are two important ways in which the judicial jurisdiction of a municipal court over the perpetrators of environmental crimes depends, in principle, upon its State’s legislative initiative. First, according to the principle of legality mentioned above, the act or omission must be defined as a crime in the State’s own domestic law. Otherwise, irrespective of the place of the alleged violation or the nationality of the offender, no punishment may be imposed. Thus, a court’s exercise of jurisdiction in a specific case will depend upon whether it defines the act or omission as a crime.4 Second, a court’s competence to exercise criminal jurisdiction may be precluded by limitations on the geographical scope of the relevant domestic legal acts, whose application may well not extend to conduct outside the State’s territory. In practice, such limitations may either be expressly stated in the law or the law may require the adoption of additional legislation to give the law or a provision thereof extraterritorial reach.5 Failure by the State to legislate does not, however, mean that no prescriptive jurisdiction exists under international law. The exercise of prescriptive jurisdiction is an inherent part of a State’s sovereignty, making the criminalization of ship-source pollution a matter of discretion for States, which may choose—or choose not—to exercise their jurisdiction as they please. For example, a flag State may choose not to criminalize discharge violations committed by its vessels, even though it has the power under international law to do so. Such discretion may, of course, be limited by general international law or by international treaties imposing obligations to enact appropriate provisions in domestic law.6 The law of the sea as codified in the United Nations Convention on the Law of the Sea (UNCLOS) generally relies on the flag State having enacted the appropriate regulations to maintain the safety of its vessels and to penalize violations committed by these vessels irrespective of where they sail. By virtue of this privileged position with respect to the ships flying its flag, the

  A State’s municipal law may however oblige its courts to take into account foreign criminal law, e.g., in order to determine the maximum level of sanctions. See generally Jareborg (ed.), p. 70 et seq. 4  And no uniform definition of a pollution crime in the context of shipping has been generally adopted; see discussion of EU rules and selected national laws in Part Four below. 5  See Sections 10.3 and 11.3 below on, respectively, Russian and Norwegian provisions on jurisdiction. 6  See also Chapter 9 on EU harmonization measures. 3

Prescriptive Criminal Jurisdiction   25

flag State is the best-equipped actor in international shipping to criminalize and prosecute pollution violations committed by the vessels flying its flag.7 In practice, however, a flag State will want its ship register to remain attractive and accordingly will not be very eager to subject the vessels flying its own flag to more stringent rules than those applicable to vessels flying the flags of other flag States. Even diligent flag States will generally not go beyond what is absolutely required under international law. The States that in practice are most eager to penalize pollution are not flag States but (coastal) States whose waters may be polluted as a result of a discharge violation and/or States in whose port the delinquent vessel has called. In practice, non-flag States are becoming increasingly assertive regarding the criminalization of ship-source pollution; a fact that may be explained inter alia by the modest use by flag States of their legislative and enforcement powers over perpetrators of pollution that are flying their flag. Chapter 2 below examines the flag State’s jurisdiction to prevent and penalize environmental violations committed by the ships flying its flag. The discussion focuses in particular on the concept of flag State jurisdiction in international law, clarifying the scope of flag States’ obligation to prohibit and criminalize such violations and examining the provisions of international safety instruments that may provide guidance on the contents of substantive rules on criminal liability in domestic legal systems. Chapter 3 below discusses the scope of legislative jurisdiction over foreign vessels and crews.

2  The Flag State’s Jurisdiction Under International Law to Prescribe Sanctions for Ship-Source Pollution 2.1  Introduction Flag States are crucial actors in the international shipping sector insofar as safety regulation and compliance are concerned. The flag State is generally  For the purposes of enforcement (e.g., detention or inspection), UNCLOS refers to the “vessel” because it is the vessel that is prevented from sailing. For the purposes of prescription, however, the reference to a “vessel” does not make sense, because the vessel itself is not capable of committing a crime, although it is the source of the pollution. Instead it is the master, the crew, the shipowner and other entities connected with the vessel that may become subject to criminal penalties. References to the “vessel” in the discussion here are made for practical purposes in cases where it is not necessary for the analysis to specify the individuals or entities that may be subject to criminal penalties for pollution. Section 3.4.2 below explains how a flag State’s prescriptive jurisdiction over the vessels flying its flag extends also (at least) to persons working on board.

7

26   Part Two viewed as the ship’s State of nationality;8 while other theories consider the flag State’s jurisdiction to be based on the principle of territoriality (the “floating territory” of a State) or as constituting its own principle of jurisdiction in international law.9 In any event, the flag State of the ship determines the law governing her operations,10 although, as discussed later in this work, the ship may also be subject to the laws of States in whose waters she sails and commits pollution violations. Unflagged ships, or ships flying the flags of more than one State, are considered to be lawless ships of no nationality and are subject to any State’s jurisdiction.11 A flag State’s nationality is granted to a ship by virtue of registration in the ship register of that State. A ship will also have a home port (the port of registry), which is the port where the vessel is registered. Generally, the home port constitutes the legal residence of the ship, regardless of her physical location at any given moment.12 UNCLOS does not attach any importance to a vessel’s port of registry for the purposes of determining which State holds ultimate jurisdiction over her operations, perhaps because it assumes that the port of registry will be situated within the territory of the flag State. As State practice shows, this is not necessarily the case, and a ship may in fact be registered at a port not within the territory of the flag State. Although a flag State’s municipal law may, in practice, make the assertion of criminal jurisdiction over a ship conditional on registration at a port within the territory of the flag State, no such requirement is mentioned in UNCLOS.13 In general it is the flag State that is bound under international law to exercise proper jurisdiction over the ships flying its flag. Under international law, it is the flag State that has the power to regulate and prohibit certain acts on board the ships flying its flag, as well as to prosecute crimes committed

 Article 91(1) UNCLOS. For more detail on the principle of nationality see Section 3.4.2 below.  9  See, e.g., Molenaar (1998), p. 95 et seq., Malanczuk (1997), p. 185, Shaw (1997), p. 420 and Churchill and Lowe (1999), p. 257, who agree that jurisdiction over a ship is governed by the principle of nationality and that the doctrine of territoriality is no longer relevant. See however the case of Lotus (Sections 3.1 and 6.1 below), Kovalev (2004), p. 132. See also Sections 10.3 and 11.3 respectively on the Norwegian and Russian approaches. 10  Article 94 UNCLOS. 11  Article 92 UNCLOS. 12  Nandan and Shabtai (1995), p. 107. 13  In practice, a ship’s home port may differ from her port of registry (although both ports will normally be within the borders of one (flag) State). See Nandan and Shabtai (1995), pp. 106–107. See also Roach and Smith (1996), p. 485, whose open list of factors to be considered when determining whether a vessel is stateless includes the fact that the ship in question has a home port that is not located within her flag State.  8

Prescriptive Criminal Jurisdiction   27

on board. The exclusive nature of flag State jurisdiction on the high seas is generally accepted as a rule of international customary law and is codified in the 1958 Geneva Convention on the High Seas14 and the UNCLOS.15 The reasons for this are grounded in the close historical links between flag States and their ships: merchant vessels were dependent on their sovereign affiliation, particularly on protection by their sovereign navy on the high seas. Shipowners would register their vessels with a particular State in order to obtain that State’s protection in exchange for their loyalty and contributions to the national economy. Flag States also excluded foreign shipowners from access to their registers and only permitted their ships to be manned by national crews.16 Modern practice with respect to the requirements imposed on shipowners seeking to register their ships varies considerably, with many States imposing very relaxed registration conditions (so-called “flags of convenience” and “open registers”). In reality, flag States have scarcely any relationship with the ships flying their flags, apart from the act of registration, and in many cases are unable to exercise any control whatsoever over their vessels.17 Although the above factors have direct and unfortunate implications for the effective exercise of flag State jurisdiction, UNCLOS leaves it to a flag State’s discretion to “fix the conditions for the grant of its nationality . . . for the registration of ships in its territory, and for the right to fly its flag.”18 Flag States establish and maintain ship registers containing the names and particulars of the ships flying their flags.19 The only condition for registration specified in the Convention is set forth in Article 91(1) UNCLOS: “[t]here must exist a genuine link between the State and the ship.” This “genuine link” is associated, in principal, with the control that the flag State exercises over its vessels.20 As noted by the International Law Commission (ILC), the “jurisdiction of the State over ships, and control it should exercise . . . can only be effective where there exists in fact a relationship  Concluded in Geneva on the 29 April 1958, in force on the 30th September 1962, 450 U.N.T.S. 11, p. 82. 15  Articles 6 of the 1958 Geneva Convention on the High Seas and 92 UNCLOS respectively. 16  See, e.g., Manchuk (2007) on the history of flag States. 17  On flags of convenience generally see, e.g., Molenaar (1998), pp. 30–32; Tan (2006), p. 47 et seq. See also Kolodkin, Gutsuliak and Bobrova (2010), p. 409 et seq., and OECD (2003). 18  Article 91 UNCLOS. 19  Article 94(2)(a). Except those ships which are excluded from international regulations on account of their small size. 20  The 1958 Geneva Convention on the High Seas specified that the genuine link is “in particular” determined by the State effectively exercising “its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” See Article 5 thereof. 14

28   Part Two between the State and the ship other than mere registration or the mere grant of a certificate or registry.”21 There have been international attempts to increase the regulation of the conditions imposed for granting nationality to vessels and, in particular, to make ship registration conditions more specific in order to strengthen the link between flag States and vessels. The United Nations Convention on Conditions for Registration of Ships (not in force)22 lays down a range of provisions intended to ensure that flag States exercise effective control over their vessels, inter alia by requiring the persons responsible for ship operations to be identifiable and accountable.23 A flag State is encouraged to ensure that its nationals own a sufficient stake in the ownership structure of the vessel24 and that the shipowning company is established, or at least has a principal place of business, within its territory.25 These conditions would never be met by a State operating an open register.26 UNCLOS requires that “[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” In particular, a flag State shall “assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.”27 However, flag States do retain a certain discretion under the law of the sea with regard to the scope of their jurisdiction and it remains to be seen in the discussion that follows whether international law obliges flag States to apply criminal law provisions to their ships at all. Although UNCLOS does not explicitly declare that flag States shall also exercise jurisdiction and control over criminal matters concerning their ships, for the historical reasons referred to above it was natural for flag States to extend their criminal laws to discourage and punish unlawful conduct on board their vessels. However, environmental crimes committed on the high seas or in foreign waters do not generally threaten the flag State’s security or sovereignty. By taking unilateral initiative in this respect, both traditional flag

 Report of the International Law Commission to the General Assembly (1956) at p. 279. See also Nandan and Shabtai (1995), p. 107. 22  Done at Geneva, February 7, 1986, 26 I.L.M. 1229 (1987). 23  Article 6 of the Convention on Conditions for Registration of Ships. 24  Ibid., Articles 7 and 8. 25  Ibid., Article 10. 26  Secrecy surrounding a ship’s beneficial ownership (anonymity) is one of the main commercial attractions of flags of convenience and open registers. See, e.g., OECD (2003). 27  Article 94(1) and (2) UNCLOS. Cf. Article 5 of the 1958 Geneva Convention on the High Seas. 21

Prescriptive Criminal Jurisdiction   29

States and those pursuing an open-register policy would create less favourable regimes for the vessels flying their flags.28 Nevertheless, flag States are assigned a very important role with respect to the protection of the marine environment and the punishment of pollution violations. A flag State that prescribes and enforces criminal liability for pollution infringements would not, generally, trespass on other States’ sovereignty, as might be the case if a coastal or port State were to apply criminal liability for ship-source pollution by foreign vessels. Exclusive flag State jurisdiction in criminal matters increases legal certainty both for the crew and for the shipping company, as opposed to a situation in which multiple foreign jurisdictions may apply rules on criminal liability in cases of pollution. Furthermore, as pointed out earlier, the existence of a clear basis for criminal liability for ship-source pollution in a State’s domestic law is indispensable if its municipal courts are to adjudicate cases and impose criminal penalties on the perpetrators. Failure by the flag State to exercise criminal prescriptive jurisdiction over ship-source pollution will in practice result in serious discharge violations falling outside the reach of criminal law altogether unless such violations may be prosecuted in a non-flag State. Thus, coastal or port States wishing to have foreign polluters punished will be disappointed if the flag State that has taken over the proceedings has no legal basis in its domestic law for the criminal prosecution of discharge violations.29 The next sections examine the scope of the flag State’s obligations under international law to prohibit ship-source pollution and penalize pollution violations committed by its vessels. 2.2  Environmental Obligations of Flag States Under International Law While criminal law is, traditionally, a domestic matter, shipping is to a considerable extent regulated internationally, including rules aimed at protecting the marine environment from ships. As is discussed in more detail below, international law is rather vague on flag State’s obligations to adopt sanctions for environmental violations. At the same time, multiple provisions in UNCLOS and other international instruments leave no doubt that flag States and other States must take measures to protect the marine environment. In general, States have an obligation “to ensure that activities within their jurisdiction and control respect the environment of other States or areas

 See Heine in Faure and Hu (2006), who says at p. 48: “The first (state) who moves has lost! In other words, the flag State that should have to play a primary role in combating and preventing marine pollution will fail . . .” 29   Of course, it is probable that, even if the flag State does have an appropriate provision in its domestic law, it will choose not to enforce it anyway. 28

30   Part Two beyond national control” and this obligation “is now part of the corpus of international law relating to the environment”.30 Some municipal legal systems have included an express obligation to this effect in their laws, but the driving force behind municipal environmental laws stems mainly from international and regional attempts to codify international environmental law and make it binding on States.31 The rights and obligations of States with respect to safety at sea and protection of the marine environment are laid down in UNCLOS. Part XII of UNCLOS, which deals specifically with States’ obligations with respect to the protection of the marine environment against pollution. Article 192 UNCLOS sets forth a general obligation on States to protect and preserve the marine environment. UNCLOS defines pollution of the marine environment as the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.32

Article 194(1) encourages States to take “all measures consistent with [UNCLOS] that are necessary to prevent, reduce and control pollution of the marine environment from any source”, while Article 194(2) prescribes States’ obligations in more detail, providing States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention. [author’s italics]

According to Article 194(3)(b), these measures must include measures designed to minimise pollution from vessels to the fullest possible extent, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels.   International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports (1996) p. 226, para. 29. See also Churchill and Lowe (1999), p. 332, and Birnie, Boyle and Redgwell (2009), p. 387. 31   E.g., States’ constitutions may contain such provisions. However, it is necessary to distinguish between an obligation imposed under international law and an obligation undertaken by a State by virtue of a domestic rule. 32  Art. 1(1)(4) UNCLOS. 30

Prescriptive Criminal Jurisdiction   31

Notably, this Article refers to all States, not merely to flag (or port/coastal States). Such a general reference suggests that non-flag States participating in the international shipping business also have a duty to protect the environment. Indeed, it is crucial for these States to observe their environmental obligations, given the nature of ownership structures in modern shipping and the weak links that exist in practice between ships and their flag States. In this author’s view, it is particularly important for the States of domicile of beneficial shipowners and shipping companies to engage more actively in developing and enforcing environmental compliance measures. The problem is that UNCLOS does not regulate in more detail the obligations of States that are not flag, port or coastal States, although, as argued here, these States are not exempt from environmental responsibilities under international law and are not deprived of jurisdiction over pollution violations. Although port and coastal States are assigned certain roles with respect to the control of safety compliance in shipping, it is still the flag State that bears the principal environmental responsibility for the vessels flying its flag. Flag States are also the main addressees of the safety conventions adopted by the International Maritime Organization (IMO), including those aimed at the environmental safety of vessels.33 States that fail to fulfil their international obligations concerning the protection and preservation of the marine environment “shall be liable in accordance with international law”.34 Thus, a flag State may, in principle, incur liability under international law for failure to prevent pollution from its ships, although this issue has not yet been addressed in practice. Moreover, repeated disregard by a flag State of its obligations to supervise the vessels flying its flag may, in principle, grant other States priority of enforcement.35 To determine whether a flag State has met its obligations under international law, it is necessary to define the scope of these obligations. The UNCLOS provisions concerning the obligations of States to prevent and minimize pollution of the marine environment emphasize the result to be achieved by the States, that of “prevention, reduction and control of pollution”. The textual analysis of the UNCLOS provisions below shows that the obligation of the flag State to prevent ship-source pollution is not unconditional and absolute. On the contrary, this obligation relates to specific, and rather formal, measures which the flag State is to undertake in order to meet the

 On the IMO generally see, e.g., Molenaar (1998), pp. 37–40; Tan (2006), pp. 70–80.  Article 235 UNCLOS (outside the scope of this work). On State responsibility under UNCLOS see Molenaar (1998), pp. 42–43. See also Birnie, Boyle and Redgwell (2009), pp. 430–431. 35  See Section 7.4 below. 33 34

32   Part Two requirements laid down in the Convention. The same applies to flag States’ enforcement obligations discussed in more detail elsewhere in the book. As a starting point, the flag State is required to “take such measures for ships flying its flag as are necessary to ensure safety at sea”.36 Article 94 “Duties of the flag State” (Part VII “High Seas” UNCLOS) specifies that flag States shall adopt measures relating to the safety parameters applicable to vessels and their navigational systems, as well as crew qualifications and working conditions. Furthermore, the flag State is also obliged to conduct mandatory technical surveys of its vessels, as well as to ensure that masters and crews are properly qualified and able to maintain communications.37 Thus, these measures must include not only the appropriate exercise of prescriptive jurisdiction by the flag State but, importantly, proper enforcement vis-à-vis the ships flying its flag.38 Flag States’ obligations with respect to the protection of the environment are regulated in Part XII UNCLOS “Protection and Preservation of the Marine Environment”. In the context of the protection of the marine environment from ship-source pollution, Article 211(2) of Section 5 provides States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organisation or general diplomatic conference. [author’s italics]

Generally, a flag State’s compliance is measured by assessing the compatibility of its domestic safety regulations with “generally accepted international rules and standards”, which represent the minimum threshold for flag States’ legislative obligations. Actual discharge thresholds and other relevant safety standards to be observed by vessels are not found in this treaty, which is rather intended to represent a codification of the customary international law of the sea and, in relation to marine pollution, to define the features and extent of the concepts of flag, coastal and port State jurisdiction, rather than specifying technical standards.39

 Article 94(3) UNCLOS.  Article 94(4) UNCLOS. The role of ensuring compliance with safety requirements will, as a rule, be undertaken by a classification society authorized by the flag State and employed by the shipowner or shipping company. 38   Flag State enforcement is dealt with in Section 6.2 below. 39   On a more specific note, flag States are obliged to adopt “laws and regulations and take other measures so that vessels flying their flag comply with requests for information” issued by coastal States in the course of their exercise of enforcement jurisdiction with respect to discharge violations committed in the territorial sea and exclusive economic zone. See 36 37

Prescriptive Criminal Jurisdiction   33

To this end, UNCLOS grants a special role to a “competent international organisation” (the IMO), through which States shall establish such “international rules and standards to prevent, reduce and control pollution of the marine environment from vessels” as are necessary to fulfil States’ obligations under UNCLOS.40 The IMO adopts and updates international conventions, recommendations, guidelines etc.41 The key treaty regulating ship-source pollution is the International Convention for the Prevention of Pollution from Ships of 1973, as amended by the Protocol of 1978 (MARPOL 73/78).42 UNCLOS is closely linked to MARPOL by virtue of its reference to “generally accepted international rules and standards” and the two conventions may appear to overlap in some areas. However, the two treaties perform different functions. MARPOL is not intended to address jurisdictional issues but to specify how State jurisdiction should be exercised so as to ensure compliance with safety and anti-pollution regulations.43 Accordingly, MARPOL and the other IMO instruments dealing with maritime safety do not grant coastal and port States any broader jurisdiction than that provided for by UNCLOS. Notably, MARPOL does not specify the maritime zones to which it applies. In general, flag States are obliged to give its provisions universal effect. Both treaties contain provisions concerning their interaction with other international agreements. Thus, obligations under UNCLOS are without prejudice to specific obligations undertaken by States under conventions concluded prior to UNCLOS that relate to the protection of the marine environment (such as MARPOL 73/78). Such specific obligations should, however, be carried out in a manner consistent with UNCLOS.44 MARPOL also takes account of the work on the codification and development of the law of the sea embodied in UNCLOS and expressly states that it is without prejudice to this work and to “the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.”45

also the IMO’s Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, 31 January 2007, LEG/MISC.5, p. 8. 40   Article 211 UNCLOS. 41  Although they are not considered in this monograph, conventions and other documents adopted by the International Labour Organisation (ILO) are also relevant to maritime safety. 42  For a full overview of amendments to MARPOL and IMO Resolutions see http://www.imo .org. See also Molenaar (1998), p. 63 et seq. on the evolution of MARPOL. 43  IMO (2007), p. 8. 44  Article 237 UNCLOS. 45   Article 9 MARPOL.

34   Part Two MARPOL superseded the 1954 International Convention for the Prevention of Pollution of the Sea by Oil (“OILPOL”). These two treaties have been the only regulatory conventions to contain standards relating both to the construction, design, equipment and machinery of vessels (so-called “CDEM standards”) and to discharges and emissions of polluting substances from ships. OILPOL, however, differed from MARPOL in several important respects. First, as its name suggests, it only regulated pollution by oil, unlike MARPOL, which covers pollution by other harmful substances as well as oil and also includes atmospheric emissions. Second, it initially (in its 1954 version) adopted a starting point whereby some discharges were permitted, even within prohibited zones. However, amendments in 1969 fundamentally changed this approach and operational discharges were prohibited except under certain conditions and circumstances. Moreover, the new rules imposed limits on the total amount of oil that could be discharged per voyage, thereby acknowledging a need to reduce—rather than merely redistribute—oil pollution.46 Third, Reg. 1/1(1) of Annex I in MARPOL contains a broader definition of oil than Article 1(1) OILPOL. Annexes to MARPOL deal with the prevention of pollution by specific substances. Of these the annexes concerning oil (Annex I) and noxious liquid substances (Annex II) have been obligatory for all contracting States since 1983. The other four annexes are optional and deal with, respectively, pollution by harmful substances in packaged form (III), pollution by sewage from ships (IV), pollution by garbage from ships (V) and pollution of the air by ships (VI). All the Annexes (except for III) contain discharge or, where relevant, emission standards that apply to particular substances.47 Only discharges of a few substances (e.g., plastics) are completely prohibited and thus subject to a “zero-pollution” requirement. At the same time, some of the Annexes, including I and II, contain full prohibitions on discharges in “special areas”. A significant deficiency of the international safety treaties arises from the rather broad range of vessels excepted from their application. Typically, governmental vessels and warships are excluded both from UNCLOS and the

 See Molenaar (1998), p. 65, fn. 154.  MARPOL Annex I (Regulations for the prevention of pollution by oil) and Annex II (Regulations for the control of pollution by noxious liquid substances in bulk) entered into force on the 2nd October 1983. Annex III (prevention of pollution by harmful substances carried by sea in packaged form entered into force 1 July 1992. Annex IV (prevention of pollution by sewage from ships) entered into force 27 September 2003; Annex V (prevention of pollution by garbage from ships) entered into force 31 December 1988; Annex VI (prevention of air pollution from ships) entered into force 19 May 2005.

46 47

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IMO conventions. Flag States are merely obliged to ensure that such ships act in a manner consistent, “so far as is reasonable and practicable”, with the international safety requirements.48 Lastly, the discharge standards and the requirements concerning the construction and equipment of ships set forth in the Annexes to MARPOL may vary depending on the age, type and the size of the vessels generally falling within the scope of the Convention. 2.3  The Flag State’s Discretion with Respect to the Criminalization of Discharge Violations States are very sceptical about imposing criminal liability on their own ships for discharge violations and related unlawful conduct, as is illustrated by the scarcity of flag State prosecution practice. There may be many reasons for such scepticism.49 The question discussed in this section is whether, and to what extent, flag States have discretion under international law with respect to the criminalization of ship-source pollution. To begin with, several provisions of UNCLOS emphasize the existence of a duty to take preventive measures in order to avoid accidents, as well as flag States’ obligation to “take any steps which may be necessary to secure observance” of safety rules.50 More specifically, Article 217(8) UNCLOS addresses sanctions for pollution violations and establishes that the penalties provided for by the laws and regulations of States shall be “adequate in severity to discourage violations wherever they occur”. Provisions on sanctions have also been included in MARPOL, as was the case with its predecessor, OILPOL 1954. MARPOL obliges contracting States to adopt appropriate sanctions for ship-source pollution. Article 4 MARPOL, headed “Violation”, states in paragraph (1) that “[a]ny violation of the requirements of the present convention shall be prohibited and sanctions shall be established therefor under the law of the Administration of the ship concerned wherever the violation occurs.” “Administration” means the government of the State under whose authority the ship is operating. With respect to a ship entitled to fly the flag of any State, the administration is the government of that State.51 MARPOL requires, by virtue of Article 4(4), that the “penalties specified under the law of a Party pursuant to the present Article shall be adequate

  See Art. 236 UNCLOS, Art. 3(2) MARPOL, Article 3(3).   See Chapter 8 below. 50  Articles 94(5), 194(2) and 211(2) UNCLOS. 51  Article 2 MARPOL. 48 49

36   Part Two in severity to discourage violations of the present Convention and shall be equally severe irrespective of where the violations occur” [author’s italics]. The wording of Article 4 of MARPOL appears to be similar in terms of its objectives (to apply similar sanctions for pollution committed by ships both abroad and within the territory of the flag State) to its predecessor in OILPOL, which required that penalties imposed under the law of any of the territories of a Contracting Government in respect of the unlawful discharge from a ship of oil or oily mixture outside the territorial sea of that territory shall be adequate in severity to discourage any such unlawful discharge and shall not be less than the penalties which may be imposed under the law of that territory in respect of the same infringements within the territorial sea.52

Similarly, in its Resolution A.499 (XII),53 adopted pursuant to OILPOL and MARPOL, the International Maritime Organisation (IMO) attempted, to some extent, to encourage the governments of the contracting States to [. . .] ensure, as a matter of highest priority, that penalties for violations of convention requirements relating to the prevention of marine pollution from ships specified under the laws of their countries, particularly financial sanctions against those who operate polluting ships, are severe enough to discourage violations of such requirements. [author’s italics]

In this Resolution the IMO did not, in general, go beyond the express wording of MARPOL and UNCLOS. The resolution, however, focuses on financial sanctions. Is the application of criminal penalties implied in the relevant UNCLOS and MARPOL provisions? Some commentators, including this author, suggest that they are.54 However, UNCLOS does not impose an express duty on flag States to criminalize ship-source pollution violations. By contrast, it does positively oblige flag States to legislate in order to make it an offence for their nationals, or ships flying their flags, culpably to break or injure submarine cables and pipelines under the high seas.55 Given the general way in which the respective provisions of these conventions are formulated, doubts may arise as to whether the law of the sea authorizes the application of criminal penalties in cases of ship-source pollution violations at all. The requirement that sanctions must be “adequate in severity to discourage violations”, when viewed in the light of Article 230 UNCLOS, which encourages mostly monetary penalties, may also be construed as   Article VI thereof.   19 November 1981. See also Resolution A.153 (ES.IV) of 27 November 1968. 54  See, e.g., Ringbom (2008) and Molenaar (1998), p. 465. 55  Art. 113 UNCLOS; Art. 27 of the 1958 Geneva Convention on the High Seas. 52 53

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precluding such stringent measures as criminal penalties (indeed, the most severe form of punishment that a State imposes on an individual ).56 In principle, such an interpretation reflects the objective of striking a fair balance between the interests of flag and coastal States, in particular with respect to the allocation of jurisdictional powers, which was important at the time UNCLOS was developed. Notions such as sanctions “adequate in severity” were primarily intended to preclude coastal States from encroaching upon the freedom of navigation enjoyed by flag States by imposing excessive sanctions on foreign vessels.57 An example of a potentially excessive penalty (at least with respect to a foreign vessel) would, naturally, be a criminal sanction such as imprisonment. Traditionally, punishment for pollution of the marine environment has been based on civil liability for pollution, as laid down in the corresponding international conventions, and has focused on compensating victims financially, rather than on the retributive and deterrent aspects of punishment characteristic of criminal law.58 Thus, on the basis of the above, it can be concluded that the purpose of the relevant UNCLOS provisions at the time the Convention was adopted was not to encourage States to adopt sanctions as severe as those envisaged under criminal law, but rather to encourage them not to go beyond certain, rather modest, measures. In addition, the IMO is very sceptical as to whether the international safety conventions may be used at all for the purposes of criminalizing discharge violations. This scepticism has been expressed, in particular, by Efthimios E. Mitropoulos, general secretary of the IMO (2003–2011), who has pointed out that the IMO conventions have not been drafted with the aim of requiring criminal sanctions for non-compliance and, therefore, any move to criminalise polluters, particularly for negligence, would constitute a significant departure from the established philosophy in their formulation.59

Whereas the objectives of the treaty provisions cited above may be understood in different, even opposing ways, contextual analysis of the relevant provisions suggests that the Conventions do not expressly prevent States from enacting provisions in their domestic laws imposing criminal liability for discharge violations. On the contrary, some other provisions of UNCLOS

 On Article 230 UNCLOS in more detail see Section 7.5 below.  See Nordquist (1991), p. 364 et seq. 58  See also text accompanied by footnotes 68 and 69 below. 59   See the speech made by Efthimios E. Mitropoulos, general secretary of the IMO, in London on 17 February 2005, available at http://www.imo.org. 56 57

38   Part Two imply that criminal proceedings, including those involving foreign perpetrators, may be initiated by both flag and non-flag States. Thus, Article 97 UNCLOS contains rules on penal jurisdiction of master’s and crew’s State of nationality in cases of collision on the high seas. Article 27 contains rules applying to criminal jurisdiction of coastal States on board foreign vessels, inter alia with respect to pollution violations in the territorial sea. The conclusion is that both flag and non-flag States are allowed to choose how to transpose the requirement to enact adequate sanctions in their domestic legal systems. Generally, States stand free with respect to the criminalization of ship-source pollution violations, even those committed abroad. However, international law does impose certain limitations on the scope of a State’s criminal prescriptive jurisdiction. First, such a limitation can be derived from the general principles of international law, such as those protecting the human rights of the crew.60 Second, (coastal) States are not permitted to enact legislation hindering innocent passage through the territorial sea. As argued elsewhere in this book, however, extending domestic rules on criminal sanctions to discharge violations committed in the territorial sea would not generally trespass on the right of innocent passage.61 Third, in this author’s view, the requirement for penalties to be “adequate in severity” precludes States from the indiscriminate criminalization of pollution incidents and encourages the application of criminal sanctions only for sufficiently serious violations. This is also reflected in Article 230 UNCLOS, which restricts the imposition of non-monetary penalties to cases of “wilful and serious” pollution (of the territorial sea). In addition, many States have already enacted legislative provisions imposing criminal liability for pollution of the marine environment and have prosecuted discharge violations by ships. In the European Union, such legislation has even been made mandatory by harmonization measures in the form of EU Directive 2005/35, as subsequently amended, and some States had already enacted corresponding provisions before the directive came into force.62 Thus, although actual practices with respect to sanctions may vary from State to State, there are good grounds for considering the criminalization of ship-source pollution as such to be compatible with international law.

  Apparently, both flag and non-flag States would be subject to similar restrictions in this respect. On the rights of the crew, see Section 7.5 below. 61  See Section 3.2 below. 62   On the EU Directives on sanctions for ship-source pollution see Chapter 9 below. 60

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This bring us to the question whether flag States are obliged (not merely permitted) under international law to criminalize ship-source pollution violations. To reiterate, the express wording of the international treaties does not apparently require flag States to impose criminal sanctions for discharge violations: there is merely a requirement for sanctions adopted to be adequately “severe”. No amendments to UNCLOS or MARPOL have been adopted with a view to incorporating an obligation on States to criminalize ship-source pollution violations. A literal interpretation of the relevant international instruments, however, may not necessarily provide us with a correct understanding of their scope. Other methods of interpretation may need to be employed to understand States’ obligations as laid down in these instruments. The ordinary meaning of the terms of a treaty should be established “in their context and in the light of its object and purpose.”63 Thus, we need to examine in more detail the purpose of the provisions set forth in UNCLOS with respect to States’ duties to prevent and minimize the pollution of the marine environment and to penalize discharge violations by sea-going vessels.64 At the time UNCLOS III was working on this multilateral treaty, environmental crime was still a relatively new phenomenon and criminal prosecutions for environmental offences were anything but common. This has clearly changed in the ensuing decades, with a developing body of international environmental law and an increasing number of criminal prosecutions in pollution cases.65 UNCLOS aims inter alia at settling “in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea”. As well as citing the convention’s “historic significance”, there is also clear support for the “progressive development of the law of the sea”.66 Some commentators have argued that UNCLOS is designed as a dynamic instrument that ought to be interpreted in such a way as to reflect the modern needs and objectives of environmental policy.67

 Article 31 of the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969 (entered into force on 27 January 1980), 1155 U.N.T.S. 331. 64   See Article 31 of the Vienna Convention on the Law of Treaties. 65  On international environmental law generally see, e.g., Birnie, Boyle and Redgwell (2009), Mégret (2011). 66  The Preamble to UNCLOS. 67  See Bodansky (1991), Boyle (2005). In the Aegean Sea Continental Shelf (Greece v. Turkey) (1978), I.C.J. Reports 3, p. 34, para. 80, the ICJ held that “in interpreting and applying the 63

40   Part Two The existing international civil liability regime establishing mechanisms for financial compensation for pollution has had little preventive effect because it fails to discourage potential perpetrators.68 Given this fact, criminal law measures would seem better suited for responding to the concerns about deterrence expressed in a range of UNCLOS and MARPOL provisions.69 Thus, even if originally UNCLOS did not request States to respond to the pollution of the marine environment by adopting criminal law measures, it can still be argued that such measures should be adopted in States’ domestic laws because they are necessary in the light both of modern realities in shipping and also of the experience acquired by domestic law-makers within this field (e.g., the minimally deterrent effect of civil liability measures and the more commonly recognized application of criminal sanctions to environmental crimes). It is, however, highly questionable whether a positive obligation on a State to adopt the relevant legislation may be derived not from the express wording of a convention but from a teleological interpretation. Requesting States to accept legislative obligations of a quite new and different scope than those originally provided for in UNCLOS would probably stretch the evolutionary and purposive interpretation of treaties beyond acceptable limits. Generally, the conditions for allowing a dynamic interpretation of a treaty under Article 31(3)(c) of the Vienna Convention on the Law of Treaties have been narrowly defined in the jurisprudence.70 In the Namibia Advisory Opinion and the case of the Aegen Sea, the International Court of Justice accepted that treaties are to be “interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation”. Even so, it has acknowledged the “primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion”.71 The practice of individual States and the regional (EU) harmonization of policy within the fields of environmental crime and ship-source pollution indicate that States do indeed view criminal sanctions as adequate and necessary penalties for these offences. It could be argued that the EU harmonization measures, implemented in the form of directives examined in

reservation . . . the Court has to take account of the evolution which has occurred in the rules of international law . . .” 68  Who may, e.g., be insured. 69  See also Chapter 8 below. 70   See also Boyle (2005) at p. 567. 71   Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Namibia Advisory Opinion) (1970), Advisory Opinion of 21 June 1971, I.C.J. Reports, 16, at p. 31, para. 53. See also Boyle pp. 567–568.

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more detail later in this work, prove the existence of considerable practice with respect to the criminalization of discharge violations; and that furthermore, by transposing these directives into their municipal laws, States have acknowledged the obligation in a way that has given rise to a new customary law rule. However, it is doubtful that these measures prove the existence of true opinio juris on the imposition of criminal liability for ship-source pollution constituting a requirement of international law. On the contrary, the need for harmonized action at EU level proves exactly the opposite: that States do not consider criminalization as in any way obligatory under international law. As a matter of de lege ferenda, we could argue that, even in the absence of an express requirement to that effect, States should adopt criminal law measures with respect to the pollution of the marine environment by ships. The exercise of prescriptive jurisdiction by the flag State with respect to environmental violations committed by the ships flying its flag is essential to ensure that such violations are subject to adequate penalties, as is required by the international treaties (and arguably by international law generally). This particularly concerns pollution violations committed on the high seas, because the issue of non-flag States’ jurisdiction under international law to adopt criminal sanctions with respect to unlawful discharges from foreign vessels on the high seas is considerably more controversial. Non-flag States will probably only exercise legislative powers over foreign perpetrators of pollution on the high seas where they can justify such legislation by demonstrating some legitimate interests.72 Such a policy would be consistent with the soft law on international environmental crime.73 Although international instruments do not impose legally binding obligations on individuals or corporations, they do “provide a justification for using criminal responsibility as a means of enforcing international environmental law.”74 In practice, the real problem lies not in the absence of domestic legislative action within the field (such action has been taken at national and EU level ), but in the absence of a harmonized international approach to the criminalization of ship-source pollution. This also causes legal uncertainty

 See Section 3.4 below for a more detailed discussion of non-flag State prescriptive jurisdiction on the high seas. 73   See, e.g., the Convention for the Protection of the Environment through Criminal Law, Council of Europe, Strasbourg, opened for signature 4 November 1998 (not in force). 74   Birnie, Boyle and Redgwell, p. 330. Soft law is a problematic phenomenon precisely because of its unenforceable nature but, as Torrens points out at p. 623, it can influence or qualify State practice, which in turn may evolve into a custom. 72

42   Part Two for alleged offenders due to inconsistencies between States in the formulation and application of criminal penalties. Regional harmonization of criminal policy with respect to the pollution of the marine environment is useful, but harmonization of States’ domestic penal provisions would be best carried out at the international level. As Boyle reasonably points out, regional measures can give little useful guidance on the interpretation of a global treaty such as UNCLOS.75 By contrast, the adoption and entry into force of an international treaty on environmental criminal law carry more weight for the interpretation of UNCLOS. International measures would ensure the introduction by all States, including flag States, of adequate and more consistent penal provisions for ship-source pollution, improving legal certainty for persons and entities potentially exposed to criminal liability for discharge violations. However, the adoption of a new formal convention to this end (or the amendment of an existing treaty, such as MARPOL or UNCLOS) would not only be a lengthy process, but might ultimately fail to bring about a binding treaty, as shown by the failure of the Convention on the Protection of the Environment through Criminal Law.76 In this respect, the IMO needs to take a more active role and adopt a new non-binding instrument on penalties for discharge violations (e.g., guidelines), in which the criminalization of ship-source pollution would be addressed.77 The existing international safety conventions do however provide for a number of obligations with respect to environmental safety. States can take these into account when formulating and applying provisions imposing criminal liability for ship-source pollution. The next section examines the provisions of MARPOL and discusses whether and how they should be taken into consideration by national legislators and courts when formulating and interpreting provisions imposing criminal liability for ship-source pollution. 2.4  International Rules Determining Environmental Responsibilities and Sanctions for Ship-Source Pollution In the absence of more specific international rules on criminal liability for ship-source pollution, States retain considerable discretion with respect to

 Boyle (2005), p. 569.  The Convention has only been ratified by one State and is unlikely to enter into force in the near future. However, EU adopted a directive with a corresponding title: see Chapter 9 below. 77  It should be noted that in 2006 the IMO and ILO adopted a joint Resolution on Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident examined later in this work. 75 76

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the content and form of their national criminal law provisions. Consequently, domestic approaches and legal techniques with respect to the criminalization of ship-source pollution and related conduct vary considerably from one State to another, depending on the peculiarities of their legal cultures, general criminal law and policy traditions, lessons learned from earlier prosecutions and other factors. The terminology used in some provisions of the international safety conventions has a confusing resemblance to that found in criminal law. For example, references to “wilful”, “serious” or “significant” pollution (UNCLOS) suggest that the extent of the pollution and the state of mind of the perpetrator are factors in the evaluation of the criminal nature of the incident. In addition, UNCLOS contains provisions of a procedural nature, such as those relating to the detention and release of foreign vessels, time bars, suspension and the transfer among fora of investigations and proceedings. MARPOL also contains an exemption (discussed in more detail later in this section) from responsibility for pollution arising from damage to the vessel except where there was “intent to cause damage or recklessness with knowledge that damage would probably result”. UNCLOS and MARPOL are not intended as instruments to bring about the harmonization of criminal sanctions for discharge violations at an international level and merely require States’ domestic legal systems to impose effective sanctions for pollution violations. Even so, these international safety conventions may still shed some light on what acts or omissions ought to be viewed as unlawful and prohibited (or required) and may assist domestic law-makers (acting both in flag State and in coastal or other non-flag State capacity) in formulating substantive criminal-law provisions and providing for procedural matters such as detention and bail.78 By virtue of MARPOL’s global acceptance, the treaty’s provisions on discharges and other safety obligations may be considered to be familiar to all those involved with shipping. Accordingly, it is both logical and legally acceptable for a State to take account of MARPOL provisions for the purposes of determining the lawfulness of a particular act or omission, even if it is up to the State itself to decide on the types of penalties to be imposed for infringements of these provisions in individual cases.79 For example, the European Union directive on criminal sanctions for ship-source pollution defines “polluting substances” (whose discharge is potentially a violation to be criminalized by Member States) by referring to the relevant MARPOL annexes.80  See Section 7.3 below.  Some legal commentators refer to MARPOL as a source of “indirect” criminal law: see Mégret (2011), at p. 198. 80  See Chapter 9 below. 78 79

44   Part Two Although some of the key obligations discussed in more detail below may, in practice, only be performed by persons working on board or by the persons and entities involved in the operation of the ship, the IMO treaties are not designed to grant specific rights or to impose particular obligations on individuals and entities. To make the treaty rules workable in practice, States must adopt appropriate domestic laws governing pollution and sanctions for causing it.81 However, even though these individuals and entities are not the direct addressees of the UNCLOS and MARPOL provisions, they are still under an obligation to comply with the discharge standards. In the event of a violation, even if the relevant flag State has not yet implemented the international rules in question, these individuals and entities will risk being subjected to sanctions applied by coastal and port States.82 The key objective of MARPOL is “the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharges of such substances”.83 To achieve this objective, MARPOL recognizes that the “deliberate, negligent or accidental release of oil and other harmful substances from ships constitutes a serious source of pollution”, thereby bringing within the treaty’s scope a broad range of acts and omissions, before specifying discharge standards in more detail in six annexes.84 The discussion below focuses on Annex I, which sets forth regulations for the prevention of pollution by oil. This provision is intended to catch a very broad range of incidents, irrespective of whether the cause is intentional, negligent or entirely innocent. MARPOL defines a discharge of harmful substances (covered by the respective Annexes to the Convention) quite broadly as “any release howsoever caused from a ship” that “includes any escape, disposal, spilling, leaking, pumping, emitting or emptying”.85

 See Chapter 3 below.  I.e., by virtue of the “no-more-favourable-treatment” requirement set forth in regional agreements on port State control, such as para. 2.4 of the Paris Memorandum of Understanding on Port State Control. See, however, Molenaar (1998), pp. 168–171, who views in general as unacceptable the enforcement by port and coastal States of rules not adopted by the flag State. 83   From the preamble. The definition of a pollution “incident” in MARPOL is broad and includes an “event involving the actual or probable discharge into the sea of a harmful substance, or effluents containing such a substance” (Article 2(6) MARPOL). On MARPOL see also Molenaar (1998), p. 63 et seq., de la Rue and Anderson (1998), p. 759 et seq. 84  Note that recent amendments to MARPOL have changed the numbering. This book uses the old numbering. 85  Article 2(3)(a). By virtue of Article 2(3)(b), MARPOL does not cover activities such as the dumping of wastes into the sea within the meaning of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention on 81 82

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Are the MARPOL provisions useful when addressing the subjective aspects of a pollution offence? For example, do they preclude the imposition of criminal liability for pollution incidents that are not caused intentionally, i.e., either by negligence or by external circumstances over which the accused had no control? Does MARPOL restrict the range of persons who may be considered liable under domestic criminal law provisions? Lastly, does the application of MARPOL require the presence of a particular type of fault, meaning that the adoption of strict liability for pollution offences could be considered contrary to MARPOL? The criminality of particular conduct is normally assessed by reference to the culpability of the offender and either his intent (mens rea) or his failure to comply with a certain standard of care (i.e., the presence of varying degrees of negligence).86 For its part, MARPOL distinguishes between operational discharges resulting from normal ship operations and accidental discharges resulting from maritime casualties such as collisions, groundings and so on. Any of these discharges may however, at least in principle, be caused either intentionally or by negligence. However, most MARPOL requirements are fairly technical and do not deal with questions of fault to any substantial degree. Chapter II of Annex I “Requirements for control of operational pollution” imposes a general prohibition on any discharges from vessels, except where certain conditions are met. The prohibition is broadest with respect to discharges in “special areas” considered to need special protection against ship-source pollution: the Mediterranean, the Baltic, the Black Sea, the Red Sea, the “Gulfs”, the Gulf of Aden, the Antarctic and North West European waters.87 In these areas MARPOL prohibits any discharge into the sea of oil or oily mixtures from oil tankers or any ships with a gross tonnage of 400 tons or more; the only permissible discharges are of clean ballast or other processed substances, on certain conditions listed in Regulation 10.88 Outside the special areas, discharges from oil tankers are permitted subject to the fulfilment of

Dumping, adopted 13 November 1972, entered into force on 30 August 1975), the release of harmful substances arising directly from the exploration for, exploitation of and associated offshore processing of sea-bed mineral resources, and the release of harmful substances for the purposes of legitimate scientific research into pollution abatement or control. Logically, such pollution may also be subject to criminal penalties under a State’s national law. 86  Strict liability is hardly ever applied in criminal law. On the US Refuse Act (which does not require culpability), see Brickey (2008), pp. 58–59. 87  See Reg. 10(1)(a)–(g) of Annex I. See also the brief discussion of “particularly sensitive sea areas” in the context of a coastal State’s prescriptive criminal jurisdiction in Chapter 3 below. An equivalent provision is found in Article 211(6) UNCLOS. 88  Reg. 10(2) and 10(3).

46   Part Two a number of cumulative conditions: the vessel must be at least 50 nautical miles from the nearest land, the discharge must not exceed a certain amount,89 and the tanker must be proceeding en route and have in operation the required systems for oil-discharge monitoring and control, as well as a slop tank arrangement. Certain conditions also apply to discharges outside the special areas from other ships (not oil tankers), including a restriction on the oil content of the effluent90 and a requirement for the ship to have in operation an oil-discharge monitoring and control system and oil filtering equipment. Smaller ships operating outside special areas must be equipped “as far as practicable and reasonable” with installations to ensure that oil residues may be stored on board and discharged either to reception facilities or into the sea in compliance with the conditions (such as remoteness from the shore etc.) listed above. MARPOL also regulates technical specifications and vessel equipment aimed at preventing and reducing pollution. Relevant provisions include rules on double hulls, segregated ballast tanks, tanks for oil residues (sludge), oil-discharge monitoring and control systems and oil filtering equipment, crude oil washing installations and so on.91 The fact that failure to comply with technical safety requirements causing pollution may result in criminal prosecution is illustrated by case law.92 One MARPOL provision appears to take particularly specific account of subjective factors for the purposes of determining responsibility for an incident. By virtue of the exception laid down in Regulation 11 of Annex I, the prohibition on discharges from ships specified elsewhere in that Chapter does not apply inter alia to (b)  the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment: (i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the discharge; and (ii) except if the owner or the Master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result. [author’s italics]93

As a starting point, this MARPOL provision appears to preclude the application of penalties if an accident involves an emergency outside the responsible  30 litres per nautical mile subject to the total amount prescribed in Regulation 9(1)(a)(v).  Which may not exceed 15 parts per million. 91  Annex I relating to oil. 92  However, the case law on this point is rather scarce. See the Erika discussed in Section 9.2 below. 93  Annex II includes an equivalent provision. Cf. Regulation 7 of Annex III, Regulation 3 of Annex IV and Regulation 6 of Annex V. 89 90

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parties’ control (even if caused by human error), assuming that such parties exercised sufficient care in order to prevent or minimize pollution. Such an emergency might, for example, arise in a case involving a maritime casualty, such as a collision with another vessel, damage to the vessel’s hull in severe weather or grounding. This may also suggest that the master should not be held liable for accidental pollution caused by structural deficiencies of the ship for which other persons than the master are responsible (such as the ship’s technical manager). What is the objective and scope of this exception, and what weight should be attached to it by domestic criminal law-makers and courts? Should it be construed as precluding domestic legislators from criminalizing acts or omissions that appear to come within the scope of the exemption? If the aim behind this exception is to introduce a binding rule regulating the formulation of domestic rules on sanctions and liability for pollution, as well as the situations to be excluded from criminalization, then it is unclear on a number of important issues. First, should “damage” to the ship and her equipment be limited to damage caused by some external physical impact, such as a collision with another vessel or grounding (or severe weather conditions), or does the definition of damage include latent technical deficiencies in the ship’s hull and/or equipment that were present both before and at the moment the accident took place? Furthermore, if such deficiencies were present and a consequent structural or other failure had in fact caused the accident, would the exception still apply provided that appropriate measures were taken after the spill? Second, the exception refers expressly to the “owner” and the “master”, who may have caused the damage intentionally or recklessly (thus preventing the application of the exception), and this may be understood as precluding the potential liability of other natural or legal persons, such as charterers, classification societies and cargo owners, whose task is to ensure the ship’s compliance with safety requirements. If a State were to rely on a narrow and literal interpretation of this MARPOL provision, all pollution caused by vessels in a substandard condition would be excluded from the scope of criminal or administrative law: the direct opposite of MARPOL’s express objective. In this author’s view, States retain considerable liberty with respect to the implementation of MARPOL obligations into domestic law, including the liberty to apply this exception in such a way as to catch a broader range of persons and entities and to punish pollution caused both intentionally and by negligence.94 A major point of controversy between law-makers and the shipping industry concerns, however, the criminalization of negligent pollution, at least in  Even though strict liability is not excluded, it is not very common (see footnote 86 above).

94

48   Part Two cases not involving gross negligence. In principle, it is intentional violations of discharge standards that ought to be criminalized. The problem with criminal prosecutions in cases of negligent pollution is that the major impetus for prosecution appears to be the extent of damage actually caused, which results in a retributive, rather than a preventive, process. This focuses the investigation very strongly on the master and crew members, who risk long detentions pre-trial, as well as long prison sentences.95 It should also be noted that the exception provision also covers certain discharges that are generally banned under MARPOL, provided that such discharges are necessary for the purposes of securing the safety of the ship or the saving of life at sea, as well as discharges into the sea, as approved by the flag State, for the purposes of combating specific pollution incidents in order to minimise damage from pollution. Such pollution incidents are also usually exempt under domestic pollution provisions. In practice it may be very difficult to establish whether a ship’s operations comply with environmental standards when the ship is far from the coast or on the high seas.96 To improve the monitoring of discharges made by ships, MARPOL requires ships to register and report to the authorities all discharges of harmful substances. For example, Oil Record Books must be kept on board all oil tankers and all other ships above a certain size.97 Entries must be made in these books whenever machinery space operations (e.g., cleaning of oil fuel tanks) or cargo/ballast operations (e.g., discharge of water from slop tanks) are conducted. Any accidental or exceptional discharges of oil that are not excepted under Regulation 11 as discussed above must also be entered in the vessel’s Oil Record Book, together with information about the circumstances of and reasons for the discharge.98 This also applies to intentional discharges, even if they infringe the MARPOL’s requirements. The Oil Record Book must be kept available for inspection and may be examined by the competent authority of the State in question. In relation to the criminal prosecution of discharge violations, the importance of this obligation to keep Oil Record Books is well illustrated by US practice.99 A coastal State will only be able to take measures to prevent or minimise spills of harmful substances and mitigate damage to the marine environment

 See also discussion in Chapter 8 below on the importance of prevention and deterrence for the application of the criminal law in environmental cases. 96  A range of surveillance methods, not described in detail here, are used by coastal authorities. 97  Regulation 20 of Annex I. Oil tankers of 150 tons gross tonnage and above and other ships of 400 tons gross tonnage and above. With respect to smaller vessels, domestic provisions must be adopted (Regulation 20(7)). 98  Regulation 20(3) of Annex I MARPOL. 99  See Dickman (1999), pp. 1–54. 95

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if it is aware that an incident has occurred. To this end, MARPOL requires the master or other person in charge of the vessel to report a pollution incident to the fullest extent possible and without delay to the flag State and “any State which may be affected”. Failure to report (or inadequate reporting) may lead to criminal charges being brought against the responsible persons under the applicable criminal law provisions.100 Any discharges not permitted under MARPOL must be reported, as well as the occurrence, or probable occurrence, of discharges generally excepted from the prohibition (i.e., discharges for the purposes of securing the safety of the ship or saving life at sea; discharges resulting from damage to the ship or its equipment; or discharges for the purposes of combating a specific pollution incident or legitimate scientific research into pollution abatement or control).101 Vessels are also required to have a shipboard oil pollution emergency plan that is approved by the flag State.102 The plan must be written in a way that enables the crew to apply it effectively in the case of an accident and must describe in detail the procedures to be followed. The preparation of such a plan is, however, only one element of a safety management system. Casualties at sea and notorious pollution accidents have taught us that the safety of a vessel depends on more than compliance with technical safety requirements, the availability of necessary equipment and up-to-date certification. It is common knowledge that human error in its various forms is a significant contributing factor in virtually all unsafe incidents. An important objective of the International Labour Organization’s (ILO) conventions is to ensure that the master and the crew are properly qualified, as well as being provided with adequate working conditions on board.103 The human factor is a complex phenomenon that has multiple effects on how safety issues are dealt with, both on board and by shipping companies. The prevailing safety culture will determine whether any importance is really attached by shipowners and ships’ crews to safe and environmentally friendly operations.104 This is important because these persons are involved directly with ship operations and have control over discharges. Failure to establish a system of safety compliance may also prevent those on board from operating the vessel safely and dealing effectively with an emergency. The IMO has attempted to address this problem by adopting the  See the Full City, discussed in Section 10.2 below.   Article III of Protocol I. 102  Regulation 26, which is contained in Chapter IV of Annex I. 103  ILO conventions are outside the scope of this work. 104  On issues relating to safety culture see, e.g., Christophersen & Johansen (1991). 100 101

50   Part Two International Safety Management Code (“ISM Code”). The Code lays down a range of obligations for shipping companies and, in particular, obliges shipping companies to assess and establish safeguards against risks, including the risk of pollution, and to monitor and update the safety management system. Crews must inter alia be trained and prepared to deal with any emergencies that have caused or may cause pollution of the marine environment. The Code shifts the focus of responsibility from the master and the crew to those generally responsible for ship operations, i.e., the shipping company. This has implications for criminal liability for pollution, since not only masters and crews, but also shipowners and shipping companies, may, in principle, face criminal sanctions for failing to set up a proper safety management system. Of course, not all violations of these (or other) requirements will necessarily result in criminal prosecution, even if the State concerned has criminalized ship-source pollution. A State’s domestic criminal law will generally require the infringement in question to satisfy certain additional qualitative or quantitative criteria in order to be considered a criminal offence. For example, the act or omission should qualify as “serious” or “substantial” or have caused “significant” damage to the environment or human life and health. A number of UNCLOS provisions indicate that the “serious” nature of pollution violations should be taken into account by coastal States taking measures against delinquent vessels.105 It is logical to understand these provisions as suggesting (and in some cases requiring) States to set such additional thresholds for the imposition of criminal liability. In addition, the Convention on the Protection of the Environment through Criminal Law (not in force) and the corresponding EU directive are aimed specifically at intentional pollution that causes or threatens to cause serious consequences such as death or serious injury to persons or substantial impairment of water quality.106 MARPOL does not provide the domestic maker of criminal law with a set of tools to this end. However, concern for the protection of the special areas suggests that the geographical location of a pollution incident (e.g., pollution affecting a nature reserve) will be an important consideration when determining its seriousness. The actual amount of oil spilled as the result of an incident may also have some significance when assessing the types of sanctions to be applied and the adequacy of criminal liability. In any event, States are presumably more likely to apply criminal law sanctions to spills that considerably exceed the MARPOL standards, while treating smaller accidental spills more leniently.

 See, e.g., Article 19(2)(h), Article 94(7), Article 230.  See Section 9.2 below.

105 106

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It is also logical to suggest that intentional discharge violations (irrespective of the actual amount spilled) will be treated considerably more severely than negligent violations. Lastly, State practice shows that a broad range of criminal law provisions, not merely those specifically addressing breaches of environmental obligations, may be considered relevant in a particular case. Thus, following the Erika accident, the French Court of First Instance considered (but did not uphold) charges brought under criminal code provisions on endangering others’ life and health. In the Royal Caribbean case, criminal liability was imposed on the shipping company for presenting false information to US Coast Guard officers by omitting to report, while in port, the (unlawful ) discharges committed elsewhere.107 It should be noted, however, that the proceedings in the cases mentioned above were not brought by the vessels’ flag States, but by the coastal (France) and port (USA) States respectively. The discussion above has focused on flag States, which have the principal authority over the ships flying their flags and undoubtedly possess prescriptive jurisdiction with respect to pollution violations on the high seas. Nevertheless, as pointed out earlier, all States have an obligation to protect the environment. Although UNCLOS, in its more specific provisions on the protection of the environment, deals (apart from flag States) with port and coastal States, some UNCLOS provisions, such as Articles 192 and 194, apply to “States” in general, without specifying these three categories. Accordingly, the States of nationality of the master and crew members and the State of the shipping company or beneficial shipowner should also be considered as being bound by the environmental obligations of international law, including an obligation to introduce appropriate penalties into their domestic systems. The next section discusses the scope of non-flag State prescriptive criminal jurisdiction over foreign perpetrators of ship-source pollution.

3  Prescriptive Criminal Jurisdiction Over Pollution Violations Involving Foreign Vessels 3.1  Introduction The discussion will now turn to States’ prescriptive jurisdiction under international law to criminalize pollution violations committed by foreign vessels.

 See Sections 3.5 and 6.3.2 below for a review and discussion of the Royal Caribbean and Section 9.2 for the Erika.

107

52   Part Two As a starting point, States have jurisdiction under international law to criminalize and prosecute acts and omissions committed within their territories by their own nationals and foreigners because “the right of a state to pass upon the lawfulness of an act within its own borders is complete, regardless of the status of the offender.”108 In the context of shipping, however, States have traditionally relied upon the flag State to determine the lawfulness of the conduct of persons on board any ships flying its flag. Accordingly, the enactment of criminal laws applicable to foreign-flagged perpetrators may conflict with the flag State’s jurisdiction. The flag State holds exclusive jurisdiction over vessels flying its flag on the high seas “save in exceptional circumstances expressly provided for in international treaties or in this Convention”.109 The flag State’s legislative and enforcement jurisdiction over its vessels on the high seas is complete. Nonflag States will have authority only in exceptional circumstances to interfere with ships on the high seas. All States have been reluctant in general to regulate conduct on board foreign vessels, even while in a State’s ports or territorial waters, including States that have asserted that foreign vessels are subject to their complete jurisdiction while in their territory.110 State practice (as examined elsewhere in this book) shows that States are cautious about extending the geographical scope of their laws beyond the exclusive economic zone. Interestingly, even States acting in the capacity of flag State sometimes provide for certain limitations on the extraterritorial application of their laws to their own vessels (e.g., the flag State’s laws apply on the high seas only, not within the EEZ or territorial waters of other States).111 Pollution crimes are particularly likely to cause direct damage to a nonflag State’s interests. At the same time, the exclusive nature of flag State jurisdiction does not automatically mean that a flag State will choose to exercise it in such a way as to establish a comprehensive system of sanctions for pollution violations involving its vessels anywhere in the world’s oceans. Consequently, in cases where the flag State of a ship refrains from taking legislative (and enforcement) action, pollution incidents affecting a coastal State’s environment will remained unpunished if they fall outside the reach of the coastal State’s criminal law.

 Empson (1967–1968), p. 32. See also Shaw (1997), p. 458 et seq.; Brownlie (2008), p. 301.  Article 92(1) UNCLOS. 110  International comity is a consideration generally taken into account by States when deciding on the appropriateness of legislative or enforcement measures. 111  See, e.g., Sections 10.3 and 11.3 below. This policy is debatable, in this author’s view, because it may result in a legal “vacuum” for polluters. 108 109

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Incentives for non-flag States to criminalize ship-source pollution by foreign perpetrators may also come from international agreements and European Union legislation, such as the EU directives on criminal sanctions for ship-source pollution examined later in this book. Pollution of the environment may also be viewed as a crime against the world community in general that should be punished by all States, even if a particular State’s interests are not directly affected. The idea of universal jurisdiction over the perpetrators of environmental crimes has not yet gained sufficient weight among States, although the idea is to some extent reflected in the port enforcement provisions of UNCLOS.112 Are States authorized under international law to impose criminal liability for pollution violations involving foreign vessels? If so, what limits and conditions does international law impose on the prescriptive criminal jurisdiction of non-flag States? As mentioned earlier, international law sources addressing directly the question of criminal jurisdiction in international law are rather scarce. In 1927, in the case of the Lotus,113 the Permanent Court of International Justice had an opportunity to rule on the issue when a dispute arose between France and Turkey concerning the prosecution by the latter of a French officer whose vessel, while heading for (then) Constantinople, had collided with a Turkish vessel on the high seas. The collision caused the Turkish vessel to sink, resulting in the deaths of several Turkish citizens. The French officer, Lieutenant Demons, was arrested upon arrival in Turkish territory and tried by the Turkish criminal court, which rejected arguments that it did not have jurisdiction to hear the case. Although Turkey had undertaken to settle questions of jurisdiction in accordance with the principles of international law,114 the court applied Article 6 of the Turkish Penal Code to the case. This article provided Any foreigner who . . . commits an offence abroad to the prejudice of Turkey or of a Turkish subject, for which offence Turkish law prescribes a penalty involving loss of freedom for a minimum period of not less than one year, shall be punished in accordance with the Turkish Penal Code provided that he is arrested in Turkey . . .

France argued, in particular, that international law, in the absence of express or implied agreement to the contrary, did not entitle a State to extend the

 For a discussion of universal jurisdiction in relation to pollution crimes, see Section 3.4.3 below. 113  The S.S. Lotus, 2 P.C.I.J. Reports 33 1935. On the Lotus see also Section 6.1 below. 114  Convention of Lausanne of 24th July 1923 (between France, the British Empire and some other “Allied Powers”, on the one hand, and Turkey, on the other hand). 112

54   Part Two criminal jurisdiction of its courts to include offences against its citizens committed outside its territory. Furthermore, France submitted that offences committed on board merchant vessels on the high seas were amenable solely to the jurisdiction of the flag State. France also argued that the culpable nature of the act (collision) must be considered purely from the standpoint of the ship’s national regulations, compliance with which was a matter for the national authorities. Turkey, for its part, submitted that it was entitled to exercise jurisdiction in the absence of any principle of international law to the contrary. Although the case concerned the jurisdiction of a State over a foreignflagged vessel that had collided with and sunk on the high seas a vessel flying its flag (effects having been produced on its “territory”),115 parallels may be drawn with the situation where a pollution incident on the high seas causes damage to the coastline and waters under the jurisdiction of the coastal State. In particular, the case is relevant to the notion of extraterritorial criminal jurisdiction under international law over foreign perpetrators of pollution.116 In the Lotus, the Permanent Court of International Justice made some observations on the question of States’ prescriptive jurisdiction under international law. The Court (albeit with dissenting opinions) accepted expressly the freedom of States to enact legislation applicable to conduct committed abroad so long as international law did not expressly preclude them from doing so. According to the Court, States did not have to rely on the existence of a permissive rule under international law in order to exercise prescriptive jurisdiction. The Court noted Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property, and acts outside their territory, [international law—A.P.] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principle which it regards best and most suitable. [author’s italics]117

This position has been severely criticized by legal commentators, and it should be noted that current legal doctrine suggests an alternative approach (or rather approaches) based on a more restrictive view of prescriptive

 On a ship as a flag State’s territory see Section 2.1 above (footnote 9).  Interestingly, at the time of the Lotus accident, the concept of territorial waters and exclusive economic zones was not yet established in international law, which meant that the “high seas” could, at least in principle, be very close to the coastal State’s shores. See Sections 3.2 and 3.3 below on these concepts in the modern law of the sea. 117   The S.S. Lotus, cited in footnote 113 above. 115 116

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jurisdiction.118 However, although those parts of the judgment in the Lotus that deal with jurisdiction to impose penalties on foreign vessels and crews for collisions and other incidents of navigation on the high seas have indeed been made obsolete (at least partly) and overruled by international conventions such as UNCLOS and its predecessors, no equivalent provisions are contained within these agreements with respect to the scope of legislative extraterritorial jurisdiction over foreign vessels. The only provisions in UNCLOS expressly to address and somewhat circumscribe States’ powers to enact rules applicable to foreign vessels outside States’ internal waters and ports relate to the right of innocent passage through the territorial sea and the legal regime governing the exclusive economic zone (EEZ). The UNCLOS provisions determining the scope of coastal States’ jurisdiction to impose criminal liability for pollution violations by foreign vessels exercising the right of innocent passage through the territorial sea are examined in Section 3.2 below, while the corresponding provisions applicable to the EEZ are examined in Section 3.3 below. Section 3.4 discusses whether (and to what extent) States may impose criminal liability for pollution violations committed beyond the waters under their jurisdiction, i.e., on the high seas or in waters under the jurisdiction of other States (extraterritorial jurisdiction). 3.2  Criminal Liability for Pollution and the Right of Innocent Passage Through the Territorial Sea 3.2.1  Overview A coastal State’s sovereignty extends beyond its land territory and internal waters to an adjacent belt of sea known as the territorial sea.119 The concept of the territorial sea has developed gradually, but it is now established under UNCLOS that a State is entitled to establish the breadth of its territorial sea up to 12 nautical miles measured from the baseline.120

 E.g., Mann (1973), pp. 25–27. See the overview of opposing views among legal commentators in Ryngaert (2008), pp. 25–26. 119  Art. 2(1) UNCLOS and Art. 1 of the Convention on the Territorial Sea and the Contiguous Zone (done at Geneva on 29 April 1958, in force on the 10th September 1964), 516 U.N.T.S. 205. 120  Article 2 UNCLOS. On baselines and approaches to drawing baselines in more detail see, e.g., Churchill and Lowe (1999). On maritime boundaries and disputes pertaining to the delimitation of maritime zones see also Brownlie (2008), p. 173 et seq.; Hong and Van Dyke (2009); Roach and Smith (1996). 118

56   Part Two Article 2(3) UNCLOS provides that “[t]he sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law”.121 The reference to “other rules of international law” refers to limitations that are not codified in UNCLOS but that may be derived from the customary law of the sea. According to the International Law Commission (ILC), [s]ome of the limitations imposed by international law on the exercise of sovereignty in the territorial sea are set forth in the present articles which cannot, however, be regarded as exhaustive. Incidents in the territorial sea raising legal questions are also governed by the general rules of international law, and these cannot be specially codified in the present draft for the purposes of their application to the territorial sea.122

The scope of a coastal State’s rights over its territorial sea almost coincides with the scope of its rights over its land territory, yet the territorial sea is generally open for free navigation by ships flying the flags of other States.123 Accordingly, the main limitation on a coastal State’s jurisdiction arises from foreign vessels’ right to navigate freely through its territorial sea. As Article 17 UNCLOS determines, “[s]ubject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.” Historically, not all States have assumed that they hold unlimited legislative jurisdiction over any offences committed by (or on board) foreign vessels passing through their territorial seas. Accordingly, some States only applied their domestic rules to specific and commonly accepted matters such as customs, fishing, navigation and security. This approach was very much like the “internal affairs” principle applied to offences committed on board foreign ships in ports. Common-law States asserted full jurisdiction over foreign vessels but generally, as a matter of policy, did not interfere if crimes that did not affect their own interests were committed on board foreign vessels.124 The right of innocent passage implies, in general, that a coastal State may not interdict, detain or impose other coercive measures and sanctions on vessels exercising such a right. After the controversial ruling in the Lotus,

 On the development of the concept of the territorial sea see, e.g., Churchill and Lowe (1999), p. 71 et seq. 122  Report of the International Law Commission to the General Assembly (1956) at p. 265. See also Nandan and Shabtai (1993), p. 73. 123  Nandan and Shabtai (1993), pp. 68, 73. Churchill and Lowe (1999) note, however, that not all States’ municipal laws treat the sea in the same way as the land, with the result that municipal laws do not necessarily apply there automatically: see p. 75. However, this does not affect States’ sovereignty over territorial waters under international law. 124  See Section 3.5 below. 121

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coastal States’ rights to take measures with respect to foreign vessels were limited in a number of international agreements. Thus, the International Convention for the Unification of Certain Rules relating to penal jurisdiction in matters of collision or other incidents of navigation (the 1952 Brussels Convention)125 prevented coastal States from prosecuting foreign vessels involved with incidents of navigation, including those which occurred in the territorial sea, unless the State party had registered a reservation with respect to its right to take proceedings in respect of casualties in its own territorial waters.126 The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone did not permit the exercise of criminal enforcement jurisdiction over foreign vessels, except where the consequences of the crime extended to the coastal State.127 The latter convention does not address in any way the interaction between coastal States’ laws to protect their coastal waters from ship-source pollution and foreign ships’ right of free navigation through territorial waters. The only requirement contained in this convention is for foreign ships exercising the right of innocent passage to comply with the coastal State’s requirements in conformity with the convention and international law.128 The convention does not specify, however, what kinds of activities by foreign vessels could be regulated by a coastal State. It also does not specify whether a coastal State may exercise criminal prescriptive jurisdiction over a foreign perpetrator of pollution within its territorial seas. UNCLOS contains a similar provision in Article 27, which circumscribes the scope of a coastal State’s criminal enforcement jurisdiction over foreign ships within its territorial sea. The article also adds an exception, however: it allows coastal States to take such measures as are necessary for the purposes of enforcement jurisdiction under Part XII. By virtue of Part XII, coastal States are authorized to take certain legislative and enforcement measures in respect of ship-source pollution, including pollution incidents occurring within the territorial sea. Article 211 in Part XII addresses specifically legislative measures adopted by States against shipsource pollution. According to Article 211(1) States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and

 Concluded in Brussels on 10 May 1952 (entered into force on 20 November 1955), 53 Am.J.Int’l L. 536 (1959). 126  Article 4(2) of the 1952 Brussels Convention, op. cit. See also Section 3.4 below. 127  Article 19(1)(a) of the Convention. 128  Ibid., Art. 17. 125

58   Part Two promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary.

The provision does not expressly mention the criminalization of ship-source pollution by coastal States. However, Article 211(4) adds that Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels.

The following discussion examines whether, and under what conditions, provisions adopted by a coastal State to impose criminal liability for shipsource pollution are compatible with foreign vessels’ right of innocent passage through the territorial sea. Are national provisions that criminalize pollution violations wholly in contravention of UNCLOS because they hamper foreign vessels’ right of innocent passage? If criminalization as such is permitted, does international law impose any limitations on substantive provisions concerning criminal liability (e.g., form of fault and the range of persons potentially subject to criminal liability)? 3.2.2  Does Criminalization of Pollution Violations Hinder Innocent Passage? By virtue of Article 21(1) UNCLOS, coastal States may adopt laws and regulations, in conformity with the provisions of UNCLOS and other rules of international law, relating to innocent passage through the territorial sea, in respect of inter alia, “the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof ” [author’s italics].129 The wording of the list set forth in this paragraph is exhaustive and does not refer expressly to legislation imposing criminal or other penalties for violation of coastal States’ laws. Furthermore, Article 24 UNCLOS prevents coastal States from “impos[ing] requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage”.130 Remarkably, the wording of these provisions does not altogether preclude a coastal State from exercising jurisdiction over foreign vessels in innocent passage, but merely points out that  Cf. Article 211 UNCLOS.  Article 24(1)(a) UNCLOS.

129 130

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the exercise of jurisdiction may not cause such passage to be impaired or denied. Consequently, even if a vessel complies with the conditions for innocent passage provided for in UNCLOS, despite having committed a pollution violation within the territorial sea of a coastal State (i.e., the violation did not amount to “wilful and serious pollution”), the vessel is nonetheless subject to the prescriptive jurisdiction of the coastal State.131 The “international rules” on the prevention of marine pollution from ships are prescribed inter alia in MARPOL. As pointed out previously, neither UNCLOS nor MARPOL deal comprehensively with the issue of criminal liability and sanctions for ship-source pollution. These instruments do impose, however, an obligation on States to adopt adequate sanctions for violations of discharge standards and related provisions. Criminal liability must surely constitute an “adequate” sanction for sufficiently serious pollution violations. Indeed, the main objective of such a sanction is the prevention of pollution and deterrence of potential perpetrators, which is completely in line with the goals pursued by the UNCLOS and MARPOL provisions.132 Thus, in this author’s view, the two treaties implicitly authorize the imposition of criminal sanctions, which fall into the category of domestic regulations that are “in conformity with the provisions of UNCLOS and other rules of international law”, as required by Article 21.133 Even if such implied authorization may not be derived from the international rules on the prevention of pollution, it is argued below that UNCLOS permits coastal States to adopt, with respect to their territorial seas, rules that deviate to some extent from international standards. In this respect, a crucial difference between the wordings of paragraphs 4 and 5 of Article 211 UNCLOS needs to be pointed out: Article 211(5) refers expressly to “generally accepted international rules and standards” as binding on coastal States when legislating with respect to their exclusive economic zones. When compared to this formulation, Article 211(4) may be read only as permitting coastal States to adopt, with respect to their territorial seas, their own, and probably stricter, domestic environmental safety rules. This is because the paragraph does not mention international rules and standards at all, but merely refers to the need to ensure that such rules “shall, in accordance with Part II, section 3, not hamper the innocent passage of foreign vessels”).134  See Sections 6.2 and 7.5 below on the consequences of passage becoming non-innocent.  See also discussion in Chapter 8 below. 133  See also Ringbom (2008), Molenaar (1998), p. 465. 134  An equivalent provision concerning coastal State enforcement is contained in Article 220, which allows a coastal State to “institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international 131 132

60   Part Two Further support for the view that a coastal State has the power to prescribe criminal liability for pollution violations committed within its territorial sea may be derived from several other provisions of UNCLOS. As mentioned earlier, Article 27 UNCLOS deals more specifically with a State’s criminal jurisdiction on board a foreign ship within its territorial sea. Article 27(1) empowers the coastal State to exercise criminal jurisdiction over a foreign ship passing through its territorial sea if the consequences of the crime extend to the coastal State. The reference to the provisions of Part XII UNCLOS indicates quite clearly that the criminal jurisdiction of the coastal State within its territorial sea includes jurisdiction in respect of pollution violations committed by foreign vessels.135 The possibility of penal sanctions is also suggested by Article 230 UNCLOS, which is analysed in more detail elsewhere in this work. Consequently it would appear inconsistent with UNCLOS as a whole to suggest that its provisions preclude altogether coastal States’ exercise of criminal prescriptive jurisdiction over ship-source pollution within the territorial sea. However, the contents and scope of any provisions imposing criminal liability enacted by a coastal State must not be such as to hamper freedom of navigation in the territorial sea contrary to the right of innocent passage. Logically, subjecting foreign vessels to requirements to which they cannot adjust during the voyage may hamper their navigation through the respective coastal State’s territorial waters. To address this problem, Article 21(2) UNCLOS contains a provision that expressly precludes coastal States from adopting national requirements relating to the construction, design, equipment and manning (CDEM) of foreign vessels except solely to give effect to generally accepted international rules or standards.136 Article 21 clearly emphasizes that coastal States are prohibited from requiring foreign ships to comply with peculiar domestic CDEM standards, as well as from criminalizing non-compliance with such standards. At the same time, commentators suggest that this provision permits coastal States to adopt non-CDEM rules (e.g., concerning discharge standards and thresholds) different from those established internationally.137

rules and standards for the prevention, reduction and control of pollution from vessels” [author’s italics] (with respect to violations committed within the territorial sea). On Article 220, see Section 6.3 below. 135  See also Churchill and Lowe (1999), p. 95. 136  See Section 3.2.1 above on the more extensive legislative opportunities with respect to internal waters. Article 21(2) UNCLOS. But see also Article 234 UNCLOS on ice-covered areas, discussed in Section 7.5 below. 137  See, e.g., Ringbom (2008), p. 416; Molenaar (1998), p. 200.

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The prohibition on imposing CDEM standards that deviate from international requirements is logical, in that it avoids vessels being subjected to different requirements around the world. By contrast, the prospect of criminal liability for discharge violations and related conduct does not, in itself, hamper vessels’ innocent passage through a territorial sea, to the extent that discharges are not a necessary part of vessel operations. Thus, Article 21 UNCLOS may be understood as accepting that States may adopt criminal sanctions in respect of certain domestic safety requirements that deviate from the international conventions so long as vessels may comply easily with such requirements. For example, requirements must not necessitate significant structural alterations or changes in manning procedures and crew qualifications. In addition, provisions imposing criminal liability should focus on serious cases of non-compliance. Minor or less-than-serious infringements, or a lack of proper paperwork (assuming the latter is not evidence of an infringement of discharge standards), will generally result in administrative fines and other responses not involving criminal liability.138 The only further condition laid down in Article 21(3) UNCLOS is that all such laws and regulations must be duly publicized. This broad interpretation of coastal States’ jurisdiction is also confirmed by Article 21(4) UNCLOS, which states Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea. [author’s italics]

Notorious cases such as the Erika and the Prestige, where pollution occurred inter alia due to the oil tankers’ structural failure, suggest that a broad basis for criminal liability would be reasonable and compatible with the preventive objective of UNCLOS and MARPOL. Are States entitled to impose criminal liability only for violations or other non-compliance that has resulted in actualpollution? Are they also free to apply sanctions for non-compliance that is only likely or probable to result in a pollution incident? Such noncompliance may relate not only to the poor technical condition of a ship, as was the case with the Prestige and the Erika, but also to non-compliance with other important environmental safety obligations, for example, deficiencies in the safety management system, errors in the oil record books, poor reporting systems and so on.

 E.g., port State control measures, detention, requests to comply: see also the Mostoles (reported by Lamarche (1995)) examined in Section 7.3 below.

138

62   Part Two One solution could be to impose criminal law sanctions only for post factum violations that have resulted in actual pollution or threatened to do so, with other violations or omissions giving rise to fines of an administrative nature, detention or an order for the ship to proceed to the nearest shipyard. As discussed elsewhere in this book, the UNCLOS enforcement provisions in any case address only discharge violations, not other types of non-compliance with environmental safety requirements. Accordingly, coastal States will generally be precluded from stopping vessels in transit in order to enforce such requirements where no pollution has yet taken place. UNCLOS does not impose such a narrow approach to legislative jurisdiction, however. Moreover, prohibiting coastal States from enacting provisions imposing criminal liability for non-compliance with essential safety requirements would deprive criminal law of its deterrent effect and also deprive coastal States of the in-port enforcement opportunities envisaged in Article 220(2) UNCLOS. Instead of precluding States from enacting such provisions, States should be encouraged to criminalize failure to maintain structurally safe vessels that also comply with the ISM Code and other anti-pollution rules. However, only serious and substantial omissions involving demonstrably intentional or grossly negligent violations would fall naturally within the scope of criminal liability, whereas less-than-serious violations would incur administrative fines and similar measures. An important limitation on coastal States’ jurisdiction with respect to the punishment of foreign perpetrators of pollution is envisaged in Article 230 UNCLOS, which limits the penalties to be applied to monetary penalties and only permits non-monetary penalties in cases of “serious and wilful” pollution within the territorial sea. Although this provision undoubtedly raises interesting questions for drafters of legislation (what can a “non-monetary” penalty possibly be, apart from imprisonment?), the issue is discussed in the context of criminal enforcement jurisdiction elsewhere in this book. 3.2.3  Who May Be Subject to Criminal Liability for Ship-Source Pollution? UNCLOS ignores many important questions that will inevitably be raised in the course of the investigative and criminal proceedings following a pollution accident. In particular, the treaty sheds no light on the persons or entities that may be subject to criminal liability for ship-source pollution. Nor does UNCLOS expressly regulate the scope of States’ legislative jurisdiction with respect to the imposition of criminal liability on certain persons and companies. In fact, it refers consistently only to the “vessel” and the “crew” (and, in some provisions, the “master”),139 without mentioning the other persons

 See, e.g., Articles 27(3), 230, 292.

139

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associated with the vessel who may be guilty where the vessel commits an environmental violation.140 While the master and the crew are in practice the persons most usually subjected to criminal proceedings in pollution cases, the purpose of referring to the “vessel” is less clear. Since criminal liability can scarcely be imposed on a ship as such, presumably the references to the “vessel” are intended to channel the legislator’s attention towards the persons and companies connected with it. Such persons and entities are many: shipowners, shipping companies, charterers and cargo owners, classification societies and the individuals employed therein. It has been argued that UNCLOS links the jurisdiction of a coastal State to the fact that the foreign vessel has committed the pollution violation within its maritime zones, meaning that the vessel’s involvement is sufficient grounds for jurisdiction. Further, while Section 7 of Part XII of UNCLOS (dealing with safeguards) limits the coastal State’s jurisdiction over foreign vessels in various ways, it is “neutral as to the person responsible for the discharge violation”.141 At the same time, with respect to penalties, Molenaar suggests that As it is presumed that negotiations at UNCLOS III did not support a ‘modern’ notion of criminal responsibility, it seems that only the actual offender can be punished with non-monetary penalties.142

With respect to the latter statement, it does coincide with the overwhelming national practice, whereby criminal penalties of a pecuniary character are imposed on foreign shipping companies. Recent French practice has shown that a very broad range of individuals and companies may in fact be subjected to criminal punishment for a pollution violation.143 The question is whether UNCLOS enables the prosecution of persons other than the master and the crew or, on the contrary, prohibits the prosecution of such persons. As a starting point, UNCLOS refers to “internationally recognized rules and standards” for the prevention, reduction and control of pollution, i.e., those contained in MARPOL. States that have ratified MARPOL are also bound to implement its provisions, raising the question whether the assertive criminalization of ship-source pollution not covered by MARPOL may be contrary to the obligations States have undertaken thereunder. Interestingly, the international conventions on civil liability for oil pollution restrict the range of persons who may incur liability for pollution  See Molenaar (1998), p. 465, and Ringbom (2008), p. 335, pointing out that, in their opinion, UNCLOS does not limit the range of persons subject to sanctions for ship-source pollution. 141  Ringbom (2008), pp. 417–418. 142  Molenaar (1998), p. 465. See also Ringbom (2008), p. 335. 143  See on the Erika in Section 9.2.4 below. 140

64   Part Two (“channelling of liability”) to the registered shipowner, who is strictly liable for “any pollution damage caused by the ship as a result of incident”.144 The shipowner is defined as “the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship.”145 No claim for damages may generally be made against any other persons involved with the ship or the incident, such as (listed in a rather open-ended manner by the conventions) the agents of the owner, charterers, pilots and salvors.146 By contrast, MARPOL places no general limitation on the range of persons that may be subject to sanctions for violations of its discharge requirements or other safety obligations. The only MARPOL provision to mention specific persons is the exception clause. This provides for an exception from the rules prohibiting discharges where the discharge results from damage to a ship or its equipment “except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result.”147 In this respect, Ringbom points out In the absence of any indication to that effect, the clause can hardly be interpreted as a ‘channelling clause’ which limits the potential liability for discharge violations exclusively to the master and the owner. [original italics]148

In general, this author concurs with this opinion and would also point out that a number of the obligations envisaged by MARPOL are, in fact, associated with persons involved with the ship other than the owner and the master. Examples include the obligations relating to environmentally safe design and construction (e.g., double-hulled tankers), the equipment to be kept on board in order to control and prevent pollution, and the technical condition of the vessel. Thus, imposing any conceptual limitation on the range of potentially liable persons under MARPOL to include only the master and the owner would also contradict States’ obligation under Article 4 of the convention to adopt adequate sanctions for violation of its provisions. Another issue faced by States when enacting domestic criminal laws concerns the basis of criminal liability for persons or entities involved with the

 Art. III of the 1992 Protocol (adopted on 27 November 1992, entered into force on 30 May 1996) to the International Convention on Civil Liability for Oil Pollution Damage, 1969 (1992 CLC). 145  Ibid., Art. I(3). 146  For more detail on the civil liability conventions see, e.g., Birnie, Boyle and Redgwell (2009), pp. 434–441; Tan (2006), p. 288 et seq. 147  Regulation 11 of Annex I MARPOL. 148  Ringbom (2008), pp. 417–418. 144

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pollution incident. Must the pollution have been caused intentionally to trigger criminal liability? Or does negligence suffice? If so, what degree of negligence is required? Finally, can strict liability be applied for pollution crimes? UNCLOS speaks of “wilful and serious” pollution, but does not contain any express provisions dealing with pollution that is not wilful (e.g., negligent or not involving any form of fault). The general wording of the convention suggests, however, that coastal States’ jurisdiction over non-wilful pollution by foreign vessels is not entirely precluded. For example, Article 230 apparently addresses situations where (monetary) penalties may be imposed for violations in the territorial sea that are not “wilful and serious”. There is also the further question whether domestic criminal law provisions that treat repeated minor discharges within the territorial sea by the same offender as, when taken together, “serious” pollution are compatible with Article 230 UNCLOS and consequently capable of triggering non-monetary sanctions.149 Furthermore, the formulation used in MARPOL to prohibit both intentional and negligent discharges is very broad, indicating a possibility to impose sanctions for pollution violations irrespective of any subjective considerations regarding liability.150 This suggests that States will not violate their obligations under MARPOL by adopting criminal law provisions that are wide-ranging enough to apply to persons other than the master and the crew and that will catch not only wilful but also negligent and reckless conduct, as well as imposing no-fault (strict) liability. At the same time, the convention invites a more lenient approach to discharges caused accidentally or negligently (human error) than to intentional discharges.151 3.3  UNCLOS Provisions on Jurisdiction in the Exclusive Economic Zone Prior to UNCLOS, waters beyond the territorial sea of a coastal State were considered to constitute the high seas, where all nations could exercise their right to free navigation.152 Thus, under the 1958 Geneva Convention on the High Seas, the term “high seas” applied to all parts of the sea not within the territorial sea or internal waters of a State.153  See the discussion of the EU Directive in Chapter 9 below.   See Section 2.4 above. 151  I.e., MARPOL “desir[es] to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances” [italics added] and contains exemptions from responsibility for accidental discharges (see text accompanied by footnote 147 above). 152  See also Article 90 UNCLOS on the right of navigation. 153  Article 1 of the 1958 Geneva Convention on the High Seas (done at Geneva on the 29 April 1958, in force on 30 September 1962), 450 U.N.T.S. 11, p. 82. 149 150

66   Part Two More recently, however, a special regime aimed at protecting the environment of coastal States has developed in those sea areas where States have established exclusive economic zones (EEZs) in order to protect their economic interests and the natural resources of their coastal waters. The EEZ has been described as a “separate functional zone of a sui generis character, situated between the territorial sea and the high seas.”154 The EEZ may extend up to 200 nautical miles from the baseline.155 According to Article 55 UNCLOS, The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part [V], under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.

In principle, the EEZ differs from the high seas in only two (crucial ) respects. Firstly, by virtue of the coastal State’s rights to the resources found there. Secondly, by virtue of the enforcement jurisdiction possessed by the coastal State within the EEZ (a jurisdiction it generally does not have on the high seas). Within the EEZ, a coastal State has inter alia jurisdiction with regard to the protection and preservation of the marine environment.156 Other States have a right of freedom of navigation within the EEZ of the coastal State; a right that is almost as unlimited as the equivalent right that applies in waters beyond the EEZ, i.e., on the high seas. However, with respect to navigation in a State’s EEZ, other States “shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with this Convention and other rules of international law”,157 including legislation on the protection of the marine environment. However, States are not obliged to establish an EEZ. Some States have chosen not to do so, with examples including States bordering the Mediterranean Sea, where it is impossible to establish a 200-mile EEZ for geographical reasons, and States which have established an exclusive fishing zone instead of an EEZ.158 This will have implications for such States’ criminal enforcement opportunities vis-à-vis foreign vessels. The scope of such States’ prescriptive

  Churchill and Lowe (1999), p. 166.  Article 57 UNCLOS. However, even prior to the adoption of this article, States have claimed certain powers beyond the limits of the territorial sea. Many commentators suggest that the EEZ became part of customary law prior to the entry into force of UNCLOS: see Churchill and Lowe (1999), p. 161. 156  Article 55(1)(b)(iii) UNCLOS. 157  Article 58(3) UNCLOS. 158  Such as United Kingdom. 154 155

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jurisdiction with respect to ship-source pollution will be determined in line with the UNCLOS provisions dealing with the high seas.159 With respect to the EEZ, Article 211(5) of Part XII UNCLOS provides, Coastal States, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference. [author’s italics]

This paragraph allows a coastal State to adopt national provisions regulating pollution, but imposes several conditions in this respect. Firstly, any such rules must be related (limited) to enforcement. Secondly, the wording of the paragraph makes clear reference to “generally accepted international rules and standards”. These must be complied with by the coastal State when exercising its prescriptive jurisdiction over foreign ships. Article 211, when read in conjunction with Article 220 UNCLOS, sheds light on the scope of a coastal State’s jurisdiction to establish anti-pollution rules by emphasizing that such rules must conform to and give effect to generally accepted international rules and standards, i.e., IMO safety requirements. This clarifies that any pollution violation in the EEZ made subject to criminal or other penalties must be defined by reference to these international standards.160 Any criminal liability imposed by the coastal State for discharge violations committed by foreign vessels in its EEZ may not be based on stricter discharge standards than those established internationally, i.e., in MARPOL.161 This raises the question whether a coastal State has any powers whatsoever to extend the scope of its criminal law to cover pollution violations committed in its EEZ. As clarified above with respect to prescriptive jurisdiction in the territorial sea, a coastal State may impose criminal liability for environmental violations by foreign-flagged ships. The legal regime governing the EEZ differs, however, from that governing the territorial sea in that the EEZ does not form part of the coastal State’s territory. On the contrary, other States may exercise freedom of navigation through the EEZ subject to the obligation to pay due

 See also Churchill and Lowe (1999) for a more detailed overview of the concept of the EEZ.  Cf. Article 234 UNCLOS (discussed in Section 7.5 below) which expressly provides for a separate legal regime for ice-covered areas. 161  The scope of prescriptive jurisdiction should at least be equal to the scope of enforcement jurisdiction, see Ringbom (2008), p. 216; Molenaar (1998), pp. 106–108; and McDorman (1997), p. 317. 159 160

68   Part Two regard to the rights of the coastal State. Given that waters now within States’ EEZs used to belong to the high seas, it may be argued that, for the purposes of determining coastal States’ criminal prescriptive jurisdiction, they should be treated as such. As discussed elsewhere in this Chapter, there is no general prohibition on States’ assertion of extraterritorial criminal jurisdiction over foreign offenders. Most commentators suggest that the scope of a coastal State’s prescriptive jurisdiction in any case coincides with its jurisdiction to enforce anti-pollution rules.162 Article 220 UNCLOS, which addresses specifically the coastal State’s enforcement jurisdiction, may, therefore, shed some light on this question. Article 220 authorizes the coastal State, subject to a range of conditions and restrictions, to inspect and detain a vessel suspected of discharge violations, to conduct investigations and to “institute proceedings in respect to any violation of its laws and regulations” committed within its territorial sea or EEZ. The provision does not specify the character of such proceedings, although there appears to be a general consensus that criminal proceedings are included.163 Article 220 thus implies that the scope of the coastal State’s prescriptive criminal jurisdiction extends at least to the boundaries of its EEZ. Article 220 has generally been interpreted as catching violations arising from operational discharges as its wording is less well-suited to dealing with pollution resulting from an accident.164 At the same time, there is nothing in the wording of the provision to preclude a coastal State from initiating proceedings with regard to accidental pollution caused, as is frequently the case, by a shipwrecked vessel. However, certain doubts arise as to the meaning and purpose of the provision when it is read in conjunction with Article 230 UNCLOS. When analysing the legal basis for criminal jurisdiction, confusion may also arise for the legislating State because Article 220 makes the exercise of enforcement jurisdiction conditional on a number of procedural and material criteria. For example, by virtue of Article 220(5), the coastal State may only gain access to the vessel to carry out a physical inspection subject to the fulfilment of two conditions: first, there must be a threat of significant pollution of the marine environment; and second, the vessel in question must have refused to supply the information required elsewhere under this article.

 See, e.g., Ringbom (2008), Molenaar (1998).  This conclusion also flows from the general logic of Part XII and State practice. See also Molenaar (1998), Ringbom (2008) and Section 2.3 above. 164  See Molenaar (1998). See, however, Nordquist (1991), p. 304. 162 163

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Furthermore, detention of the vessel and the institution of proceedings with respect to a pollution incident in the EEZ caused by the vessel are conditional inter alia on the pollution damage being sufficiently serious (“major damage” or “threat of major damage”).165 Although in practice a coastal State is likely only to apply criminal sanctions in the most serious cases of pollution, the question arises whether the requirement for the purposes of enforcement for the pollution to be sufficiently serious also circumscribes in some way the contents of domestic criminal law provisions applying to pollution violations within the EEZ. In other words, may coastal States impose criminal liability only for very serious and significant pollution violations? Article 230 UNCLOS confirms the authority of a coastal State to impose sanctions for pollution violations by foreign vessels within its EEZ (“beyond the territorial sea”), but also complicates the understanding of the permitted scope and nature of such sanctions. First, it limits the nature of the sanctions to fines (monetary penalties). Second, by expressly precluding the application of non-monetary penalties to pollution other than “wilful and serious” pollution of the territorial sea, Article 230 casts doubts on whether criminal penalties (the most usual being imprisonment) may ever apply to a pollution incident that is not committed wilfully. In this author’s view, the criminal prescriptive jurisdiction of the coastal State within its EEZ is rooted in international law generally, not in Article 230 UNCLOS. The latter article is focused on limiting the use of non-monetary penalties vis-à-vis foreign vessels, rather than on limiting criminal prescriptive jurisdiction in a broader sense. Thus the coastal State may still punish the perpetrator through the imposition of criminal law sanctions in the form of fines. Sections of this book dealing with criminal jurisdiction over foreign polluters on the high seas will shed more light on this question, as the coastal State’s legislative jurisdiction within the EEZ will not in any event be subject to greater restrictions than those applying to the corresponding jurisdiction of non-flag States on the high seas. 3.4  Criminal Liability for Pollution Violations on the High Seas and in Other States’ Waters 3.4.1  Overview Waters within coastal States’ jurisdiction make up an insignificant part of the world’s oceans. Sea territories beyond the internal waters, territorial sea and, as the case may be, EEZ of any State are the “high seas” where all States

 Article 220(6) UNCLOS.

165

70   Part Two have the right to sail the ships flying their flags and over which no State may validly purport its sovereignty. This does not imply that such ships are free to engage in acts of pollution. On the contrary, a number of UNCLOS provisions emphasize all States’ obligations to protect the marine environment from ship-source pollution.166 Although the marine environment of the high seas is of common value to all States and the world community as a whole, it is the flag State’s responsibility to ensure environmental compliance by its ships on the high seas. Although flag States have the principal obligation to adopt and apply sanctions for discharge violations, other States may also be willing to take both legislative and enforcement measures against foreign-flagged vessels involved in pollution violations outside their territories. As examined in more detail elsewhere in this book, UNCLOS and earlier treaties both regulate and restrict a State’s enforcement jurisdiction over foreign vessels beyond its ports and internal waters. At the same time, there is a scarcity of treaty provisions addressing the extraterritorial scope of a State’s legislative jurisdiction over foreign perpetrators of pollution. Accordingly, the question whether non-flag States may criminalize pollution violations committed beyond their EEZs is left to mainly general international law. Importantly, the Permanent Court of International Justice in the Lotus pointed out a distinction between States’ prescriptive and enforcement jurisdictions (the case concerned, essentially, the enforcement steps taken by Turkey following the collision). The Court suggested that the exercise of prescriptive criminal jurisdiction extraterritorially would not, in itself, conflict with international law. By contrast, the Court clearly held that the exercise of enforcement jurisdiction outside a State’s territory depended on a “permissive rule derived from international custom or a convention”.167 Is there any logic in treating prescriptive and enforcement jurisdiction separately? After all, what is the point of enacting criminal liability for crimes committed outside a State’s borders if the State is not able to prosecute the perpetrators because they are not within its territory? A lack of enforcement jurisdiction under international law or an absence of practical opportunities to enforce criminal liability for a pollution violation in a particular case (e.g., because the delinquent vessel is beyond the State’s territorial reach) does not, in principle, mean that the State is precluded altogether from ever prosecuting the polluter. Vessels are, of course, highly mobile and move constantly from the territory of one State to another. Enforcement opportunities may arise in the future, if and when the

 See Section 2.2 above.  The S.S. Lotus, 2 P.C.I.J. Reports 33 1935, pp. 18–19.

166 167

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perpetrator arrives in the relevant State’s territory. In other words, “territorial enforcement jurisdiction could compel persons to comply with norms prescribed extraterritorially.”168 Furthermore, another State may permit the State affected by the pollution to arrest the perpetrator while the vessel is within its territory or may request its own authorities to do so. Subject to receipt of a request from the flag State of the ship or the coastal State affected by the pollution, UNCLOS authorizes the port State to initiate proceedings with respect to pollution violations committed elsewhere. Although the approach proposed in the Lotus, based on the existence of a prohibitive rule, has never been overruled in any other decision of the International Court of Justice, it has had little support in legal commentaries.169 These days, a well-established view of jurisdiction under international law proposes that States exercise their powers based on specific principles, such as territoriality, personality, protection (security) and universality.170 Another view considers States generally to be authorized to exercise jurisdiction if they can advance a legitimate interest based on personal or territorial considerations linked to the matter to be regulated.171 Thus, while having relatively wide discretion in questions concerning the extraterritorial exercise of criminal prescriptive jurisdiction, States ought to exercise moderation and restraint as to the extent of the jurisdiction assumed by the courts in cases having a foreign element, and to avoid undue encroachment on a jurisdiction more properly appertaining to, or more appropriately exercisable by, another State.172

In practice, States do not give themselves unlimited discretion to criminalize any conduct committed anywhere in the world by either their own or  Ryngaert (2008), p. 25.  E.g., Mann argued that the Lotus constituted “a most unfortunate and retrograde theory” which “cannot claim to be good law” and, accordingly, that it had never been a precedent at all: see Ryngaert (2008), p. 26 n. 20. Some commentators suggest that the Court in the Lotus only meant the presumption to apply in the circumstances of the present case: Lowe (1981), p. 263. 170  See, e.g., Molenaar (1998). See also the Draft Convention on Jurisdiction with Respect to Crime (American Society of International Law, 1935), which endorsed these principles of extraterritorial jurisdiction: Am. Soc.of Int.Law, Vol. 29, 1935, 439–442. 171  Ryngaert (2008), p. 22. Ryngaert also points out, however, that it may, after all, simply be a question of which State bears the burden of proof: is the legislating State obliged to show that it is permitted to legislate under international law, or is the objecting State obliged to show that the legislating State is prohibited from exercising jurisdiction by a rule of international law. 172  International Court of Justice, Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February 1970, 9 I.L.M. 227 [1970]. 168 169

72   Part Two foreign citizens, but usually try to justify any extraterritorial scope of criminal liability by citing certain policies and interests, even though these will not necessarily be accepted by other States. Some States apply a “presumption against extraterritoriality” (to use US legal terminology), by virtue of a provision expressly reserving to the legislator the right to adopt an additional act extending the scope of the law beyond the State’s territory.173 To avoid undue encroachment upon other States’ jurisdiction, a State exercising legislative jurisdiction must ensure that it has a sufficient connection with the offender or the conduct to be criminalized. However, as Mann points out, “the real problem of international law is to define the circumstances in which, according to the practice of States, the connection is sufficiently close.”174 Apart from the territoriality principle, the personality principle of jurisdiction, which is discussed below, is commonly accepted under international law and aims to address conduct committed abroad by and against a State’s nationals. The flag State’s jurisdiction over the vessels flying its flag and the crews on board these vessels is based on the active personality principle examined in the next section. 3.4.2  Environmental Crimes Perpetrated by Nationals The principle of nationality (or the “active personality principle”) gives a State jurisdiction over its own nationals wherever an offence was committed. Some States provide for additional conditions for imposing criminal liability for offences committed by their nationals abroad. Such conditions may, inter alia, be explained by the need to avoid conflicts with other jurisdictions.175 Thus, some criminal laws only apply to “serious” crimes committed by nationals abroad.176 The principle of double criminality may also restrict the imposition of domestic criminal liability with respect to crimes committed abroad by a State’s nationals. This principle establishes that for the criminal law of an offender’s State of nationality to apply to a particular act or omission, the act or omission in question should also be punishable under the criminal law of another state, usually the state where the crime was committed.177 Double criminality does not, however, require a complete identity of norms, although foreign law may be taken into account when setting penalties.178 There are no indications that the principle of double criminality flows from  Cf. provisions of the Norwegian Ship Safety Act discussed in Section 10.3 below.  Mann (1973), p. 70. 175   Molenaar (1998), at p. 83. 176  See Sections 10.2 below on Norwegian rules. 177  Jareborg (1989), p. 43. 178  Ibid. 173 174

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international law. Rather it is an example of States deliberately restricting their own jurisdiction with respect to certain crimes. Nothing in international law in general or in the text of UNCLOS precludes a State from exercising jurisdiction over its nationals to prescribe criminal liability for pollution violations committed abroad. On the contrary, the very jurisdiction of a flag State over the ships flying its flag is based on the principle of nationality.179 The Convention on the Protection of the Environment through Criminal Law (not in force) would require States parties to adopt appropriate measures as may be necessary to establish jurisdiction over a criminal offence . . . when the offence is committed: (a) in its territory; or (b) on board a ship or an aircraft registered in it or flying its flag; or (c) by one of its nationals if the offence is punishable under criminal law where it was committed or if the place where it was committed does not fall under any territorial jurisdiction. [author’s italics]180

Whether a ship is a “national” or a “citizen” of a State, or is considered to be a “foreign” ship for the purposes of determining jurisdiction under international law, depends, in principle, upon where the ship is registered. UNCLOS does not regulate ship registration conditions and a State is generally free to determine the conditions for granting its nationality to ships. Such conditions are illustrated, albeit rather imprecisely, by case law. Thus, in the Nottebohm case, the International Court of Justice (ICJ) dealt with a dispute between two States (Guatemala and Lichtenstein) involving the validity of a grant of nationality (naturalization) to an individual.181 The ICJ took a very serious view of the meaning of nationality in principle, and said, [naturalization] involves his breaking of a bond of allegiance and his establishment of a new bond of allegiance. . . . In order to appraise its international effect, it is impossible to disregard the circumstances in which it was conferred, the serious character which attaches to it, the real and effective, and not merely the verbal preference of the individual seeking it for the country which grants it to him.

The individual in this case had clearly not established any actual bond with Liechtenstein, even in the form of any prolonged residence. On the contrary, he intended to maintain his existing bonds with his country of origin (Guatemala). The ICJ concluded that the sole aim of Mr. Nottebohm was to come “within the protection of Liechtenstein” and that he had no intention

 See Section 2.1 above.  Article 5(1) of the Convention. 181  Nottebohm (Liecht. v. Guatemala) (Second Phase) 1955 I.C.J. at 78. On the Nottebohm case in more detail see, e.g., Sloane (2009); Shaw (1997), pp. 420–421. 179 180

74   Part Two of adopting this State’s traditions, interests and way of life or of assuming any obligations (other than fiscal ones), or exercising the rights pertaining to citizenship. Historically, the definition of a ship’s nationality for the purposes of international law was a straightforward matter. Ships were owned and crewed by nationals of the same State, with which a ship would have close links.182 Ships were owned by families, i.e., natural persons, which (with some exceptions perhaps) is no longer the case today, when beneficial shipowners are not always readily identifiable. In modern shipping, the nationality of ownership and/or operational control and the nationality of registration and flag no longer coincide.183 The fact that a ship is not owned by a national of the flag State does not, however, deprive the flag State of jurisdiction over the ship under international law, including jurisdiction over pollution violations on the high seas. In principle, the flag State will also have criminal jurisdiction (both prescriptive and enforcement) over the master and the crew, regardless of whether they are nationals of that State. UNCLOS and its predecessor also grant jurisdiction to the master’s and crew’s State of nationality to conduct penal proceedings regarding an incident of navigation on the high seas.184 However, the relationship between the flag State and the State of the master’s nationality is not fully clarified in UNCLOS, as the treaty fails to explain which jurisdiction will prevail if there is a conflict: that of the flag State or that of the State of nationality of the master and the crew.185 In theory, a State’s jurisdiction over its own citizens who commit environmental violations while working on board foreign ships is important, inter alia because of flag State’s weak enforcement policies. In practice, however, a State’s criminal laws usually do not apply to every crime committed by its citizens abroad, even where pollution of the environment is considered a crime under domestic law.186 Even though the principle of nationality is a well-established principle of jurisdiction in international law,187 it is a relatively “weak” basis for exercising

 States had rules limiting the ability of foreigners to register ships, as well as crewing restrictions based on nationality that have now generally been abandoned in international shipping. 183  See OECD (2003). 184  On Article 97 UNCLOS see also Section 6.2 below. 185  Historically, the master’s State of nationality would have been the flag State, as a vessel’s master was required to be a national of the flag State. 186  See the discussion of State practice in Sections 10 and 11 below. 187  On the principle of nationality in international law generally, see, e.g., Akehurst (1972–1973), Mann (1973), p. 75 et seq.; Malanczuk (1997), p. 110. 182

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extraterritorial jurisdiction in ship-source pollution cases. Some States choose not to exercise such jurisdiction altogether or, even if they do, refrain from prosecuting their nationals for crimes committed abroad. In addition, insofar as criminal enforcement is concerned, the State in whose territory the crime was committed will in any event have jurisdiction to prosecute (in the absence of an agreement to the contrary with the State of nationality). The State of nationality will, of course, not be allowed to enforce its criminal laws within the other State’s territory, but enforcement will become possible once its citizen returns to its own territory. The modest application of the active personality principle may be justified by the policy of many States of nationality of letting other (flag or non-flag) States decide whether criminal sanctions should apply to pollution involving their citizens. This is because the latter States may have a stronger interest in criminalizing and prosecuting the pollution incident (e.g., a coastal State affected by pollution). In addition, the State of nationality may have doubts as to the quality of the foreign investigations and the reliability and/or sufficiency of the evidence supporting the criminal charges.188 In cases involving allegations of pollution committed by a foreign-flagged vessel on the high seas, no evidence at all may be available to the State(s) of the master’s and crew’s nationality.189 Irrespective of where the pollution crime is committed, the State of nationality is arguably equally affected where this type of extraterritorial crime is committed by its citizens by virtue of its general obligation to protect the marine environment.190 This would suggest that the State of nationality should assert legislative jurisdiction on the basis of nationality, even if enforcement is not practically possible, as failure to criminalize serious pollution crimes committed by its nationals abroad may cause these nationals to be given “safe haven”. Furthermore, a lack of effective prosecution by the State of nationality may cause other States (i.e., coastal and port States) to react with more aggressive criminal enforcement policies for environmental crimes committed by foreign nationals.191  There are differences between States in the types and quality of evidence admitted in criminal cases concerning pollution. 189  UNCLOS does not envisage the transfer of such information to the State of nationality of the offender, only to the coastal State and the flag State (see Section 7.4 below). In any case, States of nationality provide diplomatic assistance to nationals involved in criminal cases abroad. 190  See discussion in Sections 3.2 and 3.3 above. 191  US policy offers an example of such a situation, and it could be reasonably asked whether the individuals would be better off if they were prosecuted by their own States rather than in foreign jurisdictions. In practice, however, States do not prosecute their nationals working on foreign vessels involved with pollution violations abroad. 188

76   Part Two It can be argued that States of nationality may also have a positive obligation under international law to exercise jurisdiction over environmental crimes committed abroad, at least if there are sufficient reasons for believing that no other State will be willing (or authorized) to exercise jurisdiction. For example, under the EU directives examined later the State of the master’s nationality may be obliged to impose criminal liability for a pollution violation if the flag State fails to do so. It has been pointed out that Regrettably, in a jurisdictional context, reasonableness and the principles that support it, have been construed in a negative manner. In the traditional conception of international law as a law of coexistence, the principle of reasonableness is mainly seen as a principle of restraint, namely as a principle prohibiting States from encroaching on other States’ sovereignty. However, in a more modern conception of international law as a law of cooperation, jurisdictional reasonableness may be seen as a positive responsibility. Rather than being under a duty to refrain from exercising jurisdiction, States may in certain circumstances be under a duty to positively assert jurisdiction. [italics in original]192

UNCLOS does not clarify how the active personality principle of criminal jurisdiction applies as against the shipowner or a shipping company or other entities connected with the delinquent vessel. Apart from the master, Article 97 UNCLOS refers to “any other person in the service of the ship”. This wording apparently covers officers on board the ship and other crew members, but it is unclear whether the expression “in the service of the ship” could be understood to apply more broadly. Legal commentators usually refer to natural persons (citizens or, more rarely, permanent residents, depending on an individual State’s approach) as “nationals” to whom the nationality principle of criminal jurisdiction may apply. However, like physical persons, companies incorporated in a State may also be subject to that State’s criminal jurisdiction on the basis of nationality (corporate criminal liability). In principle, nothing prevents a State from extending the scope of its domestic criminal liability provisions to cover companies bearing its nationality that are involved in environmental crimes abroad. At the same time, international law does not provide much guidance as to the requirements for obtaining a State’s nationality, and the conditions for granting nationality to a corporation or judicial person remain essentially within the individual State’s discretion. For example, it may be possible to apply domestic criminal law provisions to a foreign shipping company involved in ship-source

 Ryngaert (2008), p. 36.

192

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pollution if the company has registered a branch in the legislating State’s territory, thereby acquiring this State’s nationality.193 It has also been suggested that foreign-registered companies that are beneficially owned or controlled by coastal State nationals could come under other jurisdictions than that of the flag State.194 The poor record for enforcement on the basis of the nationality principle suggests that States are, for one reason or another, not interested in relying on such jurisdiction in ship-source pollution cases. Presumably a State will take account of this principle, however, in a situation where it is itself affected by extraterritorial pollution, both in order to strengthen its claim for jurisdiction and to outweigh the competing claims of another State (e.g. flag or another coastal State). In theory, there is a “passive personality” principle that envisages a State having jurisdiction over extraterritorial conduct by foreign citizens directed against its own nationals.195 Arguably, such a principle may justify a State in adopting legislative measures that criminalize non-compliance with safety requirements that threaten the life and health of its citizens (e.g., passengers, crew members and the coastal population). It is unlikely that a State would rely exclusively on this principle to justify the extraterritorial application of its domestic criminal laws. However, it is reasonable to suggest that the probability of damage being suffered by the State’s nationals will at least indicate that the State has a legitimate interest in the case, thereby strengthening its claim for jurisdiction under international law. 3.4.3  Pollution by Foreign Perpetrators on the High Seas and in Other States’ Waters This section examines whether a State has unrestricted legislative jurisdiction to criminalize environmental violations by foreign vessels and citizens (or foreign corporations, as the case may be) outside the State’s territory.

 Cf. Art. 23 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ L 199 31.07.2007 pp. 40–49, referring to the place where the branch or agency is located. See also Section 10.3 below on the Norwegian penal code. 194  Molenaar (1998), p. 83. The ruling in the Barcelona Traction (cited in footnote 172 above) appears, however, to prevent lifting of the corporate veil. On this case in more detail see also Shaw (1997), p. 566. On the nationality of companies in international disputes generally see, e.g., Beygo (1993). 195  Cf. the protective (security) principle of jurisdiction. Generally on the principle of passive personality and protective principle see, e.g., Molenaar (1998), p. 84; Shaw (1997), pp. 467–469; Malanczuk (1997), pp. 11–112. 193

78   Part Two According to the principle proposed in the Lotus, a State may adopt domestic laws to this end unless a prohibitive rule of international law precludes it from doing so. In this respect, agreements between States in the aftermath of the Lotus judgment may have established such restrictions. The International Convention for the Unification of Certain Rules relating to penal jurisdiction in matters of collision or other incidents of navigation (the 1952 Brussels Convention)196 was adopted in order to protect the flag State’s exclusive jurisdiction against Lotus-type situations in future (“[h]aving recognised the advisability of establishing by agreement certain uniform rules relating to penal jurisdiction in matters of collision or other incidents of navigation”) and provided that In the event of a collision or any other incident of navigation concerning a seagoing ship and involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, criminal or disciplinary proceedings may be instituted only before the judicial or administrative authorities of the State of which the ship was flying the flag at the time of collision or other incident of navigation.197

This convention contains a far-reaching restriction on the coastal State’s jurisdiction because it applies in all maritime zones except within ports and internal waters.198 With respect to the territorial sea, the States parties were permitted to register a reservation regarding a right to take proceedings with respect to casualties within their own territorial waters.199 Lastly, a separate provision of the convention allowed States to give permission to their domestic authorities to prosecute their own nationals for offences committed while on board a ship flying the flag of another State.200 This provision, in a somewhat modified form, was retained in Article 11(1) of the 1958 Geneva Convention on the High Seas and in Article 97 UNCLOS. These provisions are, however, expressly limited to collisions and other incidents of navigation and target situations similar to that in the Lotus. The objective of this rule is to preclude any measures relating to the arrest and prosecution of foreign-flagged vessels and crews involved in casualties, even if there is damage to the non-flag State’s interests. The provisions are directed towards enforcement measures and are not generally concerned with the mere exercise of States’ prescriptive jurisdiction, even in criminal matters.  Adopted in Brussels on 10 May 1952 (entered into force on 20 November 1955), 53 Am.J.Int’l L. 536 (1959). 197  Article 1 of the 1952 Brussels Convention. 198  Ibid., Article 4(1). Note that at that time the concept of the EEZ was not yet regulated in any treaty. 199  Ibid., Article 4(2). 200  Ibid., Article 3. 196

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The scope of the provisions is also limited with respect to the types of incidents to which they apply. They do not cover pollution, even though incidents of navigation may involve spills of harmful substances. In any event, the 1952 Brussels Convention, Article 11 of the 1958 Geneva Convention on the High Seas and Article 97 UNCLOS do not deal with operational and intentional pollution that is not caused by a collision or casualty. Even if these rules could be considered as prohibiting States from exercising prescriptive jurisdiction with respect to violations on the high seas, their limited scope would leave all intentional discharges on the high seas within the scope of the extraterritorial jurisdiction of non-flag States.201 Thus, if Court’s findings in the Lotus decision quoted earlier are considered good law (and this is not absolutely certain due to the substantial amount of critical legal commentary), nothing in the text of these treaties appears to prohibit States from asserting unrestricted criminal jurisdiction over pollution violations committed beyond their borders. Perhaps States wish to retain this freedom to adopt criminal laws with extraterritorial scope and for this reason have not yet adopted a multilateral treaty codifying and developing international law rules on criminal jurisdiction.202 Assuming that States are required to rely on some permissive rule of international law in order to be able to impose criminal liability for pollution violations beyond the waters under their jurisdiction, it is necessary to examine whether the relevant international treaties contain such rules. As a starting point, Article 92(1) UNCLOS provides that that the flag State has exclusive jurisdiction over its vessels on the high seas “save in exceptional circumstances expressly provided for in international treaties or in this convention”. This may be understood not only as precluding States from taking active enforcement steps against foreign vessels (except as expressly permitted), but also as precluding States from enacting criminal laws directed against foreign ships where the legislation’s geographical scope extends onto the high seas. One provision that extends the coastal State’s jurisdiction to the high seas is Article 221 UNCLOS, which authorizes States to

 Additional restrictions on municipal criminal law provisions on discharge violations on the high seas may be derived from the UNCLOS reference to “internationally recognized rules and standards” (i.e., MARPOL). 202  By contrast, States did, generally, succeed to agree on conventions dealing with choice of law and forum in civil and commercial matters: see, e.g., Brussels (1968) and Lugano (1988) Conventions on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. 201

80   Part Two take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences.

Commentators generally agree that Article 221 is based on the customary right of self-defence (or necessity), which in any event existed before UNCLOS came into effect.203 Coastal States’ right to take measures with respect to pollution casualties has also been regulated in the 1969 International Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties (the 1969 Intervention Convention), which addresses the same types of emergencies.204 Notably, the 1969 Intervention Convention was adopted before UNCLOS entered into effect, i.e., before the EEZ was established as a maritime zone with its own legal regime. The wording of the 1969 Intervention Convention and of Article 221 UNCLOS shows that States are entitled to take measures in the event of an accident to prevent, mitigate or eliminate exceptional and major danger threatened to the environment.205 It is uncertain whether either the 1969 Intervention Convention or Article 221 UNCLOS may be applied to expand a State’s criminal jurisdiction to the high seas. This is because both are intended primarily to address the consequences of the casualty for the coastal State’s interests by resorting to the customary right of necessity, rather than to address the question of liability. If the 1969 Intervention Convention does grant extraterritorial jurisdiction to coastal States, it limits such jurisdiction, in any event, to very serious pollution incidents caused by maritime casualties and accidents. In the Erika case (a major pollution incident that occurred beyond the French EEZ), a domestic statute based on the 1969 Intervention Convention was used as one of the bases for criminal liability.206 Rules on coastal States’ enforcement jurisdiction with respect to operational discharge violations by foreign ships are established in Article 220 UNCLOS and do not expressly authorize coastal States to exercise any prescriptive jurisdiction over ship-source pollution violations committed by foreign vessels beyond the EEZ (i.e., on the high seas).

 Churchill and Lowe (1999), p. 216; Molenaar (1998), p. 388; Brownlie (2008), p. 240.  International Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties, adopted on 29 November 1969 (entered into force May 6, 1975), 970 U.N.T.S. 211. The Torrey Canyon accident of 1967 gave impetus to the adoption of this Convention and to the active development of environmental safety regulations at sea. 205  Article 1 of the 1969 Intervention Convention, op. cit. 206  See Section 9.2.4 below. 203 204

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Article 220(1) UNCLOS provides for a coastal State’s right to institute proceedings with respect to violations which occurred “within the territorial sea or the exclusive economic zone of that State”. It could be argued that this provision limits the prescriptive jurisdiction of the coastal State in a similar way. In contrast to the corresponding provision on port State enforcement in Article 218, Article 220(1) appears to give coastal States’ jurisdiction a considerably narrower geographical scope. Article 218 is not, by its wording, limited in the same way as Article 220(1) and has been understood by legal commentators as applying also to pollution violations on the high seas.207 Thus, Article 218(1) gives port States the right to “institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State”. Although this provision deals with enforcement, and not prescriptive, jurisdiction, a port State needs to enact an appropriate provision in its domestic criminal law in order to obtain a legal basis for the criminal prosecution of ship-source pollution violations committed extraterritorially.208 In this author’s view, there is no logic granting port States prescriptive jurisdiction over violations committed on the high seas or in other States’ waters while at the same time precluding coastal States from exercising such jurisdiction. Most States are both port and coastal States, although by virtue of geographical and economic factors some are more “coastal” than “port” State, and vice versa.209 The coastal State may avail itself of Article 218 UNCLOS if a delinquent vessel involved in a discharge violation on the high seas voluntarily calls at a port of that State. Article 218 places one limit on a port State’s prescriptive jurisdiction by restricting the application of penalties to violations of “applicable international rules and standards” committed outside a port State’s maritime zones. As discussed earlier, in general this does not prevent altogether the criminalization of ship-source pollution perpetrated by foreign vessels and nationals on the high seas. It may, however, imply certain restrictions on the substantive contents of the State’s domestic criminal liability provisions (i.e., criminal liability may not be imposed for violations of CDEM standards that differ from those laid down in international conventions).210

 See Section 6.3.4 below.  Article 218 functions as a basis for both prescriptive and enforcement jurisdiction. As Molenaar (1998) points out at p. 105, “A basis for port State enforcement without a related or implicit prescriptive basis would lead to a result that can never have been the intention of the negotiators at UNCLOS III.” 209  Some land-locked States will, however, be purely “flag States”, e.g. Mongolia. 210  On possible limits as to the contents of criminal liability rules see Section 2.4 above. 207 208

82   Part Two At the same time, with respect to proceedings initiated by a port State concerning violations committed within other States’ maritime zones, Article 218(2) does point out that the presence of certain additional factors is necessary in order to authorize the port State to take enforcement action against the foreign delinquent vessel: i.e., a request by the State in whose waters the damage occurred or by the flag State. Such a request is not necessary only if the port State itself has also suffered damage as a result of the pollution incident. Provisions on coastal State jurisdiction (Article 220 and provisions on the right of innocent passage through the territorial sea) show that the legislating State needs to have some legitimate concerns or links with the prohibited conduct (the consequences of the pollution extend to the coastal State, wilful and serious pollution etc.). As discussed above, UNCLOS recognizes coastal States’ concerns with respect to the protection of the marine environment of their EEZs. The question is whether States may rely on corresponding concerns in order to assert prescriptive jurisdiction over pollution violations on the high seas. This approach to extraterritorial prescriptive jurisdiction under international law, which is based on the existence of some legitimate interest or link with the prohibited and criminalized conduct, has generally been accepted in legal doctrine, even though it is a substantial deviation from the rule proposed in the Lotus (and, in fact, builds upon the permissive rule in relation to extraterritorial jurisdiction). Legal commentators argue that in general “a State may not exercise its jurisdiction when it has no legitimate interest in or when it is not affected by an activity”211 and suggest that “there should be a substantial and bona fide connection between the subject matter and the source of the jurisdiction”.212 Such an approach to extraterritorial prescriptive jurisdiction, which makes the exercise of such jurisdiction conditional on the demonstration of some legitimate interest or link to the legislating State, may be justified by respect for the flag State’s sovereignty and freedom of navigation on the high seas. A State may exercise jurisdiction if it can show that it has stronger links with the perpetrator of pollution or the incident or that its legitimate interests outweigh the interests of another State that may also claim jurisdiction over the perpetrator. For example, the Third Restatement of the Foreign Relations Law of the United States does not allow unlimited extraterritorial jurisdiction and precludes altogether the exercise of prescriptive jurisdiction with

 Ryngaert (2008), p. 31.  Ibid. See also Mann (1973), p. 70.

211 212

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respect to a person or activities having connections with another State where this is “unreasonable”. The Third Restatement proposes a range of criteria for determining the presence of “unreasonableness”, for showing inter alia whether the prohibited activity may have a substantial, direct and foreseeable effect within the territory (of the prescribing State), for evaluating the importance of the conduct for that State, and the extent to which other States regulate these activities, and for establishing the “importance of the regulation to the international political, legal, or economic system”, “the extent to which another state may have an interest in regulating the activity”, and “the likelihood of conflict with regulation by another state”.213 Interestingly, a port State’s jurisdiction with respect to pollution violations on the high seas, as provided for in Article 218 UNCLOS, is not expressly dependent on damage having been caused in the port State’s waters. In addition, the port State’s jurisdiction will inevitably overlap with the flag State’s jurisdiction over the delinquent vessel with respect to pollution violations on the high seas. Yet, if the port State had to establish the presence of certain additional factors to justify the exercise of extraterritorial prescriptive jurisdiction, as proposed in the legal doctrine or the Third Restatement, a whole category of pollution violations would fall outside Article 218, completely contrary to the intention behind the provision.214 While this overlapping jurisdiction and an absence of pollution in the port State’s waters will have a direct bearing on the scope of a port State’s enforcement jurisdiction by virtue of the conditions in Article 218 and Article 228 examined later in this work, the scope of its prescriptive jurisdiction with respect to discharge violations remains very broad. In any event, the strict application of the principle requiring the regulating State to show some legitimate interest in the discharge violation would leave a whole range of discharge violations completely outside the reach of nonflag States’ laws simply because no State was directly affected by them. This is hardly compatible with the modern view that the marine environment is the common heritage of mankind and that pollution crimes affecting that environment affect the world community as a whole.215

 § 403(2) of the Restatement. On the Restatement generally see also Hixson (1988).  States are, however, hesitant to legislate with respect to discharge violations committed on the high seas: see, e.g., Norway in Section 10.3 below. 215  Molenaar (1998) at p. 106 points out, however, that “arguing that illegal discharge on the high seas has detrimental effects for the entire Community of States would indeed stretch the term ‘effect’ too much.” The (still undeveloped under international law) concept of environmental crime is concerned with the impact of an act or omission on the 213 214

84   Part Two Some commentators suggest that UNCLOS needs to be applied in such a way as to provide a better balance between the interests of flag and coastal States. They also point out that UNCLOS is not the final word on the law of the sea and does not deal explicitly with every possible situation where pollution may affect a coastal State.216 Thus, Bodansky writes With respect to prescription, one possibility is to develop new jurisdictional rules that take account of the relevant state interests with greater particularity than UNCLOS III. Rather than assume that all coastal state regulations infringe on navigation and are hence suspect, we could examine in greater detail whether, and to what degree, a particular assertion of coastal state jurisdiction would in fact hinder maritime commerce. Where the infringement on navigation would be severe, the coastal state should bear an extremely high, if not insurmountable, burden of justification; where the navigational interest is low, a much lesser coastal state interest should suffice . . .217

Although some clarification and modernization of the UNCLOS approach to prescriptive jurisdiction over foreign perpetrators would be of great assistance for States sceptical about the Lotus-style approach, the treaty contains no express provisions that would preclude a non-flag State from criminalizing pollution committed by a foreign-flagged vessel either on the high seas or in other States’ waters. On the contrary, the absence of such criminalizing legislation would deprive a State of enforcement jurisdiction in cases where such jurisdiction is expressly authorized by UNCLOS (i.e., by Article 218 on port State jurisdiction). In this author’s view, UNCLOS does not generally preclude States from exercising prescriptive jurisdiction over foreign perpetrators of pollution on the high seas.218 Domestic laws examined in more detail elsewhere in this book indicate uncertainty however as to the limits of States’ prescriptive jurisdiction with respect to the criminalization of discharge violations and related conduct by foreign perpetrators.219 Unless a State has undertaken a positive obligation to the contrary under an international treaty, it is free, of course, to limit expressly the territorial

environment (the environment as “victim”) rather than with its effect on the interests of a particular State or States. 216  See Boyle (2005) on evolutionary interpretation of UNCLOS. See also Bodansky (1991), Molenaar (1998), pp. 84–84 (footnote 50). 217  Bodansky (1991), p. 775. 218  See also Bodansky (1991), p. 739; Molenaar (1998), p. 108. 219  States do engage in the exercise of analysing and weighing the factors for and against extraterritorial criminal jurisdiction, as proposed by the permissive rule of jurisdiction or the Restatement: see Section 10.3 below on the Norwegian rules.

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scope of its criminal law provisions.220 The ambivalent wording of Article 218 leaves much discretion to port States with regard both to prescription and to decision-making on the taking of enforcement measures against a delinquent vessel.221 Thus States may exercise discretion, firstly, when deciding whether to criminalize pollution committed by foreign vessels either on the high seas or in other States’ territories and, secondly, when deciding whether to require the exercise of jurisdiction to be justified by the fact that either the State’s own interests or other legitimate concerns are affected by the violation. Even if the legislating State is required under international law to justify the exercise of prescriptive jurisdiction over pollution violations on the high seas on the grounds of harm to some legitimate interests, the protection of the marine environment against pollution could be viewed as such interest. UNCLOS obliges all States to protect the marine environment, and such a general obligation is sufficient, in this author’s view, to justify the enactment by port States of legislative measures to criminalize discharge violations on the high seas.222 In addition, jurisdiction on the basis of the principle of universality may be invoked in relation to activities directed against the international community as a whole. Where jurisdiction is asserted on the basis of this principle there is no need, for the purposes of compliance with international law, to demonstrate that a particular State has a legitimate interest because of a risk of it suffering direct damage. The port State jurisdiction established in Article 218 UNCLOS shares some features with universal jurisdiction, although Article 218 does impose a geographical restriction on enforcement that rules out universal port State jurisdiction.223 Still, insofar as prescriptive criminal jurisdiction is concerned, some commentators note that “[w]hen port and coastal State jurisdiction is treated as a whole (coastal State jurisdiction in a wider sense), it is correct to speak of universal prescriptive jurisdiction with respect to illegal discharges” [italics in original].224 The principle of universality applies to a limited range of international crimes and may, in principle, apply to particularly serious environmental crimes, probably involving pollution of unusually grave character. In this

 At the same time, EU directives examined in more detail later require Member States to criminalize discharge violations, including those committed on the high seas. 221  “. . . may undertake investigations”. 222  See Section 2.2 above on the environmental obligations of States under UNCLOS. 223  Molenaar (1998), p. 85. 224  Ibid., p. 106. See also McDorman (1997), p. 319. 220

86   Part Two respect, Draft Articles on State Responsibility (ILC) stipulate that an international crime may result from a serious breach [by a State—A.P.] of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.225

Although the concept of international environmental crime (covered by the principle of universality) is not yet well-established, it may be argued de lege ferenda that this principle permits the application of a State’s laws to crimes committed by foreign perpetrators anywhere in the world’s oceans.226 Such an approach would, however, go beyond the de lege lata jurisdiction enjoyed by a port State under Article 218 UNCLOS in so far as enforcement is concerned. It should also be pointed out that (under the wording of Article 218), port State jurisdiction may, in principle, be exercised with respect to any, even relatively trivial, discharge violations on the high seas or in other States’ waters even if they do not cause immense damage to the environment insofar as the violation contravenes international discharge standards. One indication that an exercise of extraterritorial prescriptive jurisdiction is exceeding what is permissible under international law will be objections voiced by other States.227 The State directly disadvantaged by a disproportionate exercise of extraterritorial prescriptive jurisdiction with respect to discharge violations committed on the high seas will be the flag State of the ship. Although the actual disadvantage will result not from the act of prescribing extraterritorial criminal liability but from enforcement, it is reasonable for States to expect that enforcement will take place sooner or later. “Flags of convenience”, which have no real connection to the ship or shipowner, would probably be unlikely to use diplomatic measures to question the compatibility of a non-flag State’s legislation with international law.228 Indeed, other States than flag States may be more concerned with such legislative measures, for example, the State where the shipping company or beneficial shipowner is domiciled. It is, however, unclear whether such a State

 Draft Article 19(3)(a), International Law Commission (1979), p. 92. See also Bodansky (1991), who suggests that pollution on the high seas could be brought under the principle of universality: p. 776; Pharand (1973) p. 257. See also Birnie, Boyle and Redgwell (2009), p. 331 on universal jurisdiction and crimes against international law. 226  Mégret (2011), Torrens (1993–1994). See also Bodansky (1991), who suggests that pollution on the high seas could be brought under the principle of universality: p. 776; Pharand (1973) p. 257. 227  See Akehurst (1972–1973), p. 176, Ryngaert (2008), pp. 32–34. 228  No such objections are known to the author. 225

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would have standing under either general international law or UNCLOS in a jurisdictional dispute.229 Given that flag States still play a fundamental role in the modern jurisdictional regime of the law of the sea, it would be reasonable for non-flag States to give most (or even exclusive) weight to flag States’ interests when analysing the potential implications of prescriptive measures vis-à-vis foreign vessels.230 International practice also indicates that a State that is considering the assertion of extraterritorial jurisdiction to the disadvantage of other States is likely to take account of the probability of retaliation against its own fleet elsewhere in the world.231 In practice, however, even those States with sufficient influence to coerce other States into accepting their assertions of extraterritorial jurisdiction tend to avoid doing so (at least in the case of shipping).232 The discussion in the following section shows that municipal courts often circumvent the complexities of extraterritoriality doctrines of jurisdiction by treating pollution violations as offences committed within the State’s territory. 3.5  Application of Territorial Jurisdiction to Discharge Violations Perpetrated Outside a State’s Territory It is remarkable that even States whose criminal law systems have traditionally been based on a strictly territorial approach apply the territorial principle of jurisdiction in such a way as to make it applicable to pollution violations perpetrated by foreign vessels on the high seas or in other States’ waters. UNCLOS regulates a State’s sovereignty over its land territory and internal waters by stating merely that “[t]he sovereignty of a coastal State extends, beyond its land territory and internal waters . . . to an adjacent belt of sea,

 Not according to the ICJ’s Barcelona Traction ruling (cited in footnote 172 above), in any event. On the Barcelona Traction ruling (including criticism of the judgment) see, e.g., Shaw (1997), p. 566, Beygo (1993). 230  Of course, in practice it is unlikely that States will be able to conduct an individual analysis for each possible flag State which may be affected by the former’s exercise of criminal prescriptive jurisdiction. In any case, UNCLOS does not permit discrimination among States. 231  See, e.g., Lauritzen v. Larsen, 345 US 571, 582 (1953); the Court could not be “unmindful of the necessity of mutual forbearance if retaliations are to be avoided”. See also on the Arisan in Section 10.3 below and Ryngaert (2008), pp. 33–34 discussing the impact of political and power-balance considerations. 232  Although the “power” theory of jurisdiction may also be applied to determine the lawfulness of an extraterritorial legal act, it shows that an absence of diplomatic protests may not necessarily be a sufficient criterion to establish lawfulness. See the discussion in Ryngaert (2008), p. 34. 229

88   Part Two described as the territorial sea” [author’s italics].233 Apart from the provisions regulating the right of innocent passage through the territorial sea and limiting coastal States’ jurisdiction there, UNCLOS contains no other provisions establishing a comprehensive framework within which the territorial principle of criminal jurisdiction over ship-source pollution could be applied. A State’s internal waters are defined as “waters on the landward side of the baseline of the territorial sea” and “part of the internal waters of the State”.234 A range of UNCLOS provisions confirm that States have considerably more extensive jurisdiction over foreign vessels that enter their internal waters and ports than over foreign vessels merely transiting the territorial sea. For example, a coastal State is expressly authorized to adopt conditions for entry into its internal waters and ports. Article 211(3) UNCLOS expressly acknowledges that coastal States may establish “particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters”, subject only to a requirement that these are made public.235 A problem may arise for foreign vessels, however, if the port State’s laws provide for requirements that are essentially different from those of flag State regulations based on the requirements of IMO conventions. Similarly, Article 27(2) UNCLOS provides for wider criminal enforcement jurisdiction in the territorial sea when the ship in question is sailing in the territorial sea “after leaving internal waters”. UNCLOS only circumscribes States’ jurisdiction with respect to their internal waters in cases where the establishment of a straight baseline “has the effect of enclosing as internal waters areas which had not previously been considered as such”. The treaty maintains a right of innocent passage in such waters.236 Legal commentators generally agree that a State’s internal waters, including its ports, and its territorial sea (apart from the right to innocent passage) are subject to the State’s full territorial sovereignty. A popular opinion is that such sovereignty generally includes the jurisdiction to adopt and

 Article 2(1) UNCLOS.   Defined in Article 8(1). Domestic laws also distinguish between internal maritime (sea) waters and other internal (inland) waters, such as lakes and rivers. 235  See also Article 25(2) UNCLOS, which provides that, in the case of ships proceeding to internal waters, the coastal State “has the right to take the necessary steps to prevent any breach of conditions to which admission of those ships into internal waters . . . is subject”. On EU measures in this respect see Ringbom (2008), p. 203 et seq. 236   Article 8(2). 233 234

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enforce criminal laws that also apply to foreign subjects with respect to conduct committed within the territory, including laws applying to foreign ships that commit ship-source pollution violations within the internal waters of the State.237 International consequences will inevitably follow, however, even if the application of a State’s domestic legislation is confined to conduct on board foreign-flagged vessels in the State’s ports and internal waters. The rationale for maintaining the supremacy of flag State jurisdiction is the need to avoid exposing ships to the concurrent application of the innumerable foreign laws of the States in whose ports they may call or through whose waters they may sail. This makes it necessary to examine whether international law still places certain limitations on a State’s criminal jurisdiction over the perpetrators of ship-source pollution and related violations in its internal waters. State practice is generally consistent in that States will tend not to interfere with activities on board foreign vessels while in port unless such activities somehow affect the interests of the port State. For example, France has traditionally considered that it has only limited control over criminal acts committed on board foreign vessels within its ports (the so-called “French principle”).238 Although common law countries such as the United States and the United Kingdom assume full jurisdiction over foreign vessels within their ports, usually such countries do not interfere in criminal matters unless asked to do so or where the “peace and good order of the port is likely to be affected”.239 In practice, however, all States take international comity into consideration and avoid intervening where offences committed on board foreign vessels concern only the internal affairs of the ship. In the Wildenhus case, it was pointed out that if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never, by comity or usage, been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority.240

An intentional discharge violation within a State’s ports or internal waters will be categorized as an offence coming under the legislative jurisdiction of

 See, e.g., Ringbom (2008), p. 212 and the discussion of State practice in Sections 10 and 11.   See the Sally and Newton (France), Bulletin des Lois (1806), No. 126, 602, discussed, e.g., in Clark (1980), pp. 233–234, Charteris (1920–1921). 239   See, e.g., Clark (1979–1980), pp. 231–233; Churchill and Lowe (1999), pp. 92–93. 240  Mali v. Keeper (the Wildenhus), 120 U.S. 1, 7 S.Ct. 385 (1880). See also the discussion in Sections 6.3.1 and 6.3.2 below. 237 238

90   Part Two that State. It could however be argued that certain pollution violations—for example, unintentional or less-than-serious discharges—should escape such jurisdiction and remain within the flag State’s jurisdiction. In any event, it is up to the State in whose port or internal waters the ship committed the violation to decide whether to enforce the relevant domestic rules. Another question that arises is whether non-compliance with safety rules of an internal nature relating to on-board routines and not directly affecting the interests of the port State will remain beyond the reach of the port State’s laws (e.g., environmental compliance plans, regulations relating to on-board safety management systems and so on). Historically, ports did not interfere with matters pertaining to on-board safety and other routines.241 These days, however, the principle of noninterference with the internal affairs of the ship has been very significantly curtailed in the case law and by international safety treaties imposing obligations with respect to port State control.242 The criminalization of environmental violations on the basis of territorial jurisdiction creates significant opportunities for non-flag States because they may claim full sovereignty over conduct committed within their borders. First, they may prescribe stricter discharge rules than those provided for in MARPOL (i.e., stricter than “international rules and standards”).243 Second, States are not limited with respect to the types of criminal sanctions that may be applied in respect of violations committed within their internal waters, meaning that prison sentences may safely be applied instead of fines. As mentioned earlier, UNCLOS does not regulate States’ territorial sovereignty in any detail. In principle, States are free to determine how to exercise their territorial jurisdiction. In the Schooner Exchange, the US Court stated, The jurisdiction of the nation, within its own territory, is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.244

 An exception is controls of the amount of cargo loaded onto the ship. Apparently the overloading of ships was subject to sanctions even in ancient times. 242   On port State control agreements, such as the Paris Memorandum of Understanding see, e.g., Özçayir (2004) p. 121 et seq. See also Sections 6.3.4 and 7.2 below. 243  See Section 3.2 above. 244  The Schooner Exchange v. McFaddon and others, 7 Cranch 116, 11 U.S. 116, 1812 WL 1310 (U.S.Pa.), 3 L.Ed. 287. 241

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In practice, States have applied the territorial principle also to offences that, technically speaking, were committed wholly or partially outside their territories. An example of a wider application of territorial jurisdiction to extraterritorial acts (in the context of ship-source pollution) was the case of the oil tanker the Prestige, which suffered structural damage and sank in Spain’s EEZ, polluting the territorial sea and the coastline. The Spanish courts asserted territorial jurisdiction over the incident, because under Spanish law a criminal act can be considered as having been committed both in the place where the incident occurs and in the place where the damage is sustained.245 The question is whether, under both UNCLOS and international law generally, the pollution violation could be considered as having occurred within Spanish territory, removing the limitations on the scope of Spanish prescriptive jurisdiction envisaged under UNCLOS with respect to conduct committed in the territorial sea and the EEZ. It should be noted that the discussion in this section is limited to the question of prescriptive criminal jurisdiction. Enforcement jurisdiction in such cases is discussed in more detail elsewhere.246 Article 3(1) of the Draft Convention on Jurisdiction with Respect to Crime247 recognizes territorial jurisdiction over certain parts of conduct and defines a State’s territorial jurisdiction as applicable to “any crime committed in whole or in part within its territory.” It further provides that This jurisdiction extends to (a) Any participation outside its territory in a crime committed in whole or in part within its territory; and (b) Any attempt outside its territory to commit a crime in whole or in part within its territory.248

States generally accept that extraterritorial crimes that cause damage (effects) within their territories may fall within the scope of domestic criminal law on the basis of the territoriality principle of jurisdiction. An implied authorization for such prescriptive jurisdiction is found in several UNCLOS provisions.249  Michinel (2007).  Of course, under UNCLOS the Spanish laws could have applied anyway, perhaps with some restrictions as to enforcement, which were probably not relevant in a case of such major damage: see Section 6.3.3 below. 247  Am. Soc.of Int.Law, Vol. 29, 1935, 439–442. 248  Ibid., Article 3(2). See also EU Directive 2005/35 examined later in this work, which requires that aiding and abetting pollution violations—acts which may have been undertaken in other States’ territories than where the pollution took place—also be criminalized. 249  Article 27(1)(a) “if the consequences of the crime extend to the coastal State”; Article 221 authorizing measures in relation to a casualty beyond the territorial sea in order to avoid consequences within the territorial sea and affecting the coastline. 245 246

92   Part Two Legal commentators have also recognized that a State may apply its criminal laws to violations committed outside its borders if the damage occurred within its territory (“objective territoriality”).250 In pollution cases, however, a spill is likely to cause damage in several States’ waters, meaning that more than one State (in addition to the flag State) may assert jurisdiction based on this principle. In cases where more than one State is affected by the pollution it would be contrary to comity considerations for a particular State to rely exclusively on its own sovereignty and disregard equivalent claims by other States. In the event of concurrent jurisdictions, the relevant question (which would probably be resolved not at the time the law was enacted but at the enforcement stage) would be which State’s interests in the particular accident outweighed those of other States. This might be determined by reference to the extent of the damage caused by the spill as well as other factors determining whether another State might have a superior interest in prosecuting the polluters.251 Environmental violations in shipping usually involve not only the actual spill of oil or of other harmful substances, but also some omissions by the master or the crew, or, as the case may be, other entities related to the ship. These omissions, if taken in isolation from the spill, may be said to have occurred within the territory of the State, even though the spill itself have occurred outside it. Thus, in the Prestige, one of the charges brought against the master related to failure to obey the orders of the Spanish authorities. Similarly, in the Full City examined later in this work, the master was charged with omitting to

 On the objective territoriality principle generally see, e.g., Shaw (1997), p. 459 et seq., Molenaar (1998), pp 81–82; Brownlie (2008), p. 301. On this controversial approach to the principle in the Lotus see also Section 6.1 below. Cf. Article 4(1) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ L 199 31.07.2007 pp. 40–49, which puts the main emphasis on the law of the country “in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred. See also discussion in Section 6.3 below. 251  Cf. Article 4(3) of the Regulation 864/2007, op. cit., refers, e.g., to all the circumstances of the case which show that the delict is manifestly more closely connected with another State. For example, other elements of the offence may have been committed within that other State’s territory, such as omission to notify the authorities of the emergency or submit accurate information to the coastguard. In US law see also the Third Restatement, which grants the State jurisdiction to prescribe law with respect to “certain conduct outside its territory that has or is intended to have substantial effect within its territory” [italics added] and contains a list of factors which may be taken into account when the State decides whether other States may have stronger claim to the exercise of prescriptive jurisdiction than the legislating State. 250

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notify the coastal authorities of the emergency situation immediately the risk of pollution arose. In the Erika, where a shipwreck caused a catastrophic spill in the French EEZ, the defendants raised objections to the charge (one of several in the case) of endangering crew members’ lives on the grounds that both the defendants and the victims were foreign nationals and the accident had occurred outside French territory. The French Court of First Instance established that this particular charge related to a crime committed by the defendants in France, in that they allowed the tanker—which they knew to be in an unseaworthy condition—to sail, thereby putting the lives of those on board in grave danger. The Court noted that “[t]his circumstance, that took place on French soil [in the port of Dunkirk—A.P.], is a constituting action pursuant to . . . the criminal code”. With respect to the applicability of French criminal law, the Court concluded that As the offence is considered as having been committed in French territory, French criminal law is applicable to it, even though those persons who allegedly committed it or were the victims thereof are of foreign nationality and though other significant acts covered by this qualification took place or produced their effects outside French territory.252

The assertion of jurisdiction in these cases apparently may only have been strengthened by the fact that substantial environmental damage was caused within the relevant State’s territory.253 However, purely domestic criminal liability provisions may also be made applicable to some acts or omissions that, despite having been committed within the State’s territory, are connected with the (extraterritorial ) discharge violation. In United States v. Royal Caribbean Cruises Ltd,254 the prosecutors circumvented the application of international law altogether by charging the company not with the pollution violation as such (which had occurred outside US waters and accordingly was beyond the reach of the relevant domestic Act), but with violating the False Statement Act through concealing

 The judgment of 16 January 2008 of the Court of First Instance (Paris), 11th Chamber, para. 2.2, p. 228 of the judgment. An unofficial English translation of the judgment is on file with the author. In the case of Erika, the charges of endangerment of others were, however, dismissed by the Court because it did not find the presence of some constituent elements of this crime in the accused’s conduct, such as the existence of a specific obligation of safety imposed by the law, wilful violation of such obligation and a causal link between the omission and the risk. On the Erika, see also Section 9.2.4 below. 253  In line with the previous discussion, a decision as to the applicability of domestic legal acts would probably be taken at the stage of enforcement. 254  United States of America v. Royal Caribbean Cruises LTD. 11 F.Supp.2d 1358, 1998 A.M.C. 1817. 252

94   Part Two falsifications in the oil record book from US Coast Guard officers. The US courts, in particular, have reasoned that the mere fact that international issues are involved is not enough to divest the United States of jurisdiction. In any case, the Court noted that an alternative basis for jurisdiction existed in this case because “[t]he extraterritoriality doctrine provid[es] jurisdiction over ‘extraterritorial acts [that] are intended to have an effect within the sovereign territory’”.255 The reference to “effects” is interesting because in this particular case the spill did not affect US territory. The Court did not, however, elaborate on this question.256 This discussion has shown that States may avoid having to undertake complex legal analyses of rights of extraterritorial jurisdiction by relying on the well-established territorial principle of jurisdiction, even if a case (such as those presented above) clearly has extraterritorial elements. The problem with such an approach is that it does not contribute to clarifying and developing the doctrine of extraterritorial criminal jurisdiction under international law. This area of the law remains subject to the interpretation of municipal courts, even though clarification in relation to ship-source pollution cases is much needed.

 Royal Caribbean Cruises, op. cit.   See, e.g., Gehan (2001) and Section 6.3.2 below for a more detailed discussion of this case.

255 256

Part Three Criminal Enforcement Jurisdiction in Ship-Source Pollution Cases 4  Introduction The following discussion examines criminal enforcement in ship-source pollution cases. The main focus is the scope of and limitations on States’ criminal enforcement jurisdiction under international law. Domestic enforcement authorities and courts may be prevented from prosecuting a pollution violation if a proper legal basis for doing so is lacking in the municipal law.1 The discussion in this Part, however, focuses on the scope of States’ jurisdiction under international law to enforce criminal liability for pollution violations by ships. As a starting point, under international law a State’s enforcement jurisdiction in respect of ship-source pollution will be considerably more limited than its prescriptive jurisdiction to criminalize such pollution. The flag State of the vessel has principal jurisdiction over matters relating to that vessel, including jurisdiction to prosecute crimes committed on board. In practice, however, a delinquent vessel is more likely to be prosecuted by a coastal State, simply because the flag State will almost certainly be less vulnerable to the effects of a discharge violation committed by one of its ships. Generally, the provisions of Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) aim to reduce the possibility of a conflict of jurisdictions between the three categories of States—flag, port and coastal States—that may be involved, in one way or another, in the same pollution incident by allocating criminal jurisdiction in respect of a specific incident to one of them. Remarkably, given that the States of nationality of the master and the members of the crew are generally granted jurisdiction  As discussed earlier in this monograph, States are generally not obliged to criminalize shipsource pollution.

1

96   Part Three by both UNCLOS and general international law, the practical enforcement provisions set forth in Sections 6 and 7 of Part XII UNCLOS do not contain any references to States of nationality. The various stages of enforcement will not necessarily fall within the jurisdiction of one State in particular. For example, even though a port State has the authority to inspect a foreign ship in order to establish whether a discharge violation has occurred, it may lack jurisdiction under international law to put the perpetrators on trial. Meanwhile, a coastal State may not be entitled to stop and inspect (or, as the case may be, detain) the delinquent vessel outside its territorial sea, but will still have general jurisdiction to put the perpetrators on trial if they enter one of its ports. The interdiction of foreign vessels directly hinders the freedom of navigation protected by UNCLOS. Enforcement measures vis-à-vis foreign ships may result in a conflict of jurisdictions not only between non-flag and flag States, but also between the non-flag States that may be affected by a pollution incident involving a foreign ship. UNCLOS is primarily concerned with circumscribing the rights of non-flag States to undertake enforcement measures vis-à-vis foreign ships (particularly measures directly restricting vessels’ freedom of navigation). The convention is considerably vaguer on the allocation of criminal jurisdiction as between different non-flag States affected by the same pollution incident. The following discussion is divided into three chapters dealing, respectively, with different aspects of jurisdiction: authority in different maritime zones to interdict foreign ships in cases of suspected discharge violations (Chapter 5); flag, port and coastal State jurisdiction to prosecute and impose penalties for ship-source pollution (Chapter 6); and the special limitations on non-flag State jurisdiction envisaged in several “safeguards” set forth in UNCLOS (Chapter 7).

5  Interdiction of Foreign Vessels and Crews for Pollution Violations 5.1  Introduction This chapter examines States’ jurisdiction to stop, inspect and, where necessary, detain foreign ships suspected of committing pollution violations in coastal waters and on the high seas. Inspection and, if necessary, detention of vessels and crews may be necessary for the purposes of investigating violations, instituting proceedings and imposing penalties. Although the detention of the vessel and the crew is not, in itself, an absolute condition under international law for the exercise of a State’s criminal enforcement jurisdiction, failure to take the delinquent vessel and its crew

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into custody may deprive that State of effective enforcement opportunities in practice. By detaining the vessel and the crew, and subsequently acquiring financial security for their release, the coastal State will ensure coverage of at least some of its costs in connection with the incident, as well as ensure that any individuals charged with the pollution violation are likely to appear in court. States’ municipal laws commonly provide for measures (e.g., arrest) that are intended to prevent suspects in criminal cases from fleeing from justice. However, the interdiction and arrest of a foreign vessel directly impedes its freedom of navigation. For this reason, international law has generally imposed certain restrictions on the use of such measures vis-à-vis ships.2 Thus UNCLOS contains a number of provisions regulating the powers of coastal and port States to interdict foreign vessels for enforcement purposes. As a starting point, Article 27 UNCLOS provides that a coastal State should not exercise its criminal jurisdiction in order either to arrest persons or to conduct any investigation on board a foreign vessel sailing through its territorial seas (i.e., a ship in transit). Article 27. Criminal jurisdiction on board a foreign ship 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases [a list of exceptions]3

The exceptions envisaged in sub-paragraphs (a)–(d) of this provision authorize the coastal State to stop such a vessel if: the “consequences of the crime extend to the coastal State”; the crime is of a kind to “disturb the peace of the country or the good order of the territorial sea”; the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

 While the law of the sea regulates States’ jurisdiction with respect to criminal and administrative measures, there are also international agreements regulating the arrest of ships for the purposes of securing maritime claims, including claims for damage caused by a ship in a collision or otherwise (outside the scope of this work). 3  An equivalent provision was set forth in the Convention on the Territorial Sea and the Contiguous Zone (done at Geneva on 29 April 1958, in force on the 10th September 1964), 516 U.N.T.S. 205. Article 28 UNCLOS sets forth a similar provision relating to civil enforcement. The words “should not” suggest that this provision is discretionary in nature. 2

98   Part Three Importantly, Article 27 UNCLOS expressly recognizes the coastal State’s right to exercise its criminal jurisdiction to take enforcement measures vis-àvis foreign vessels involved in pollution violations. Article 27(5) provides Except as provided in Part XII . . . the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. [author’s italics]4

Article 220 of Part XII UNCLOS sets forth special provisions that coastal States must comply with vis-à-vis foreign vessels suspected of committing pollution violations. These include rules on stopping, inspecting and detaining such vessels. Article 220(1) provides 1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State.

Article 218 UNCLOS contains a corresponding provision authorizing port States both to detain foreign vessels while in port and also to institute proceedings with regard to pollution violations committed outside the port State’s own maritime zones.5 Unlike the subsequent paragraphs of Article 220, the first paragraph does not refer expressly to the in-port inspection and detention of a foreign vessel (only referring to the institution of proceedings). Nonetheless, a coastal State’s authority to impose coercive measures on foreign vessels is broadest vis-à-vis the vessels within its ports. Accordingly, this paragraph should be understood as allowing a coastal State to inspect and, if necessary, detain a vessel in its port where the vessel is suspected of having committed a pollution violation in the State’s territorial sea or EEZ, assuming the other conditions set forth in the provision are met.6

 The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, op. cit., contains no further clarification of the exception set forth in sub-paragraph (a). Even so, it would be logical to assume that the exception covers pollution consequences, thus authorizing the coastal State to interfere with the vessel. 5  Articles 218 and 220 UNCLOS do not refer expressly to “detention” but it is implied that States have such an authority within their internal waters and ports: see Section 6.3 below. 6  See, e.g., Molenaar (1998), p. 187. 4

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The wording of Article 220 UNCLOS only regulates expressly the detention of vessels for pollution violations committed in the territorial sea or EEZ of the coastal State. It does not refer to any corresponding measures in respect of violations within the State’s internal waters or ports. What if a foreign vessel commits a violation while in a port or while sailing through the internal waters of a coastal State? There is general acceptance in State practice and among legal commentators that States have full jurisdiction within their territories. Accordingly, States’ powers to take enforcement action within the limits of their internal waters are not subject to the restrictions that apply in the territorial sea. Article 27(2) appears to confirm the unlimited nature of a State’s jurisdiction within its territorial sea by stating that the provisions restricting criminal enforcement vis-à-vis vessels transiting the territorial sea “do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters” [author’s italics].7 However, the local authorities are required to pay “due regard to the interests of navigation” when deciding whether or in what manner an arrest should be made.8 Article 220 does not define “detention”. Nor does it provide any further detail regarding the grounds for or duration of such a measure. The duration of a vessel’s detention will in practice depend on a variety of circumstances pertaining to the investigation of the incident by the coastal authorities, as well as on the posting of sufficient security for the release.9 Articles 218 and 220 should be read in conjunction with the provisions of Section 7 “Safeguards” of Part XII. This section sets forth inter alia the conditions for the inspection and detention of ships, as well as providing for some additional restrictions on the inspection and detention of foreign vessels. The grounds for and procedures applicable to pre-trial detention will also be regulated in the domestic criminal procedure of the relevant State. Article 220 makes it clear that the scope of a coastal State’s jurisdiction to interdict a foreign perpetrator of pollution depends, first, on the maritime zone in which the vessel is situated at the moment the enforcement action takes place, and, second, on the maritime zone in which the pollution violation was committed. Thus, jurisdiction to stop, inspect and detain a foreign vessel is broadest if the incident occurred and/or the vessel is within the  Article 27(5) UNCLOS also includes wording to similar effect. Note that Article 8(2) UNCLOS expressly preserves foreign vessels’ right of innocent passage in internal waters in cases where the internal waters have not previously been considered as such but have subsequently been enclosed by the establishment of a straight baseline. 8  Article 27(4) UNCLOS. 9  On detention under Articles 218 and 220 UNCLOS see also Nordquist (1991), p. 301. 7

100   Part Three internal waters or territorial sea of the coastal State. The coastal State’s jurisdiction is considerably circumscribed in the EEZ. On the high seas, the flag State (almost always) has exclusive jurisdiction over its ships. UNCLOS does not regulate the jurisdiction of a non-flag State to arrest the master, officers or other members of the crew (or, as the case may be, other individuals associated with the ship or the pollution incident in question), where such arrest is not part of the measures directed against the ship, as regulated under Article 220 UNCLOS. This would, for example, be the case if such individuals were arrested when re-entering the coastal State after having initially escaped detention under Article 220 by fleeing the country.10 In principle, UNCLOS does not preclude the right of a coastal State to arrest a foreign perpetrator of unlawful pollution outside the framework set forth in Article 220. After all, the convention’s main objective is the protection of the flag State’s right to freedom of navigation, not the establishment of a comprehensive international regime for criminal prosecution. So long as such an arrest does not hinder the flag State’s right to freedom of navigation, it will not raise concerns under Part XII UNCLOS. Such an arrest may however be contrary to Article 97 UNCLOS, which specifically prohibits non-flag States from instituting any penal proceedings against the master and the crew in cases involving collisions or other incidents of navigation on the high seas. In addition, in accordance with the ne bis in idem principle, general rules of international law relating to criminal procedure may preclude the parallel or subsequent prosecution of the same perpetrator for the same crime in any other State. 5.2  Inspection and Detention of Foreign Vessels in the Territorial Sea Article 220(2) grants the coastal State jurisdiction over a foreign ship navigating its territorial sea where the ship has, during such passage, violated laws or regulations adopted by the State pursuant to UNCLOS or applicable international rules and standards for the prevention, reduction and control of pollution from vessels. Article 220 UNCLOS requires any enforcement measures undertaken against a vessel in the territorial sea to be without prejudice to the provisions on innocent passage.11 Thus, Article 24(1) provides that

 See, e.g., the United States’ Environmental Protection Agency list (at http://www.epa.gov/ fugitives/), which is illustrative of a nation not giving up its criminal jurisdiction over a perpetrator of pollution merely because he has left its territory. 11  On the right of innocent passage in the context of ship-source pollution violations, see also Section 3.2 above. See also Molenaar (1998), p. 242 et seq., and Nordquist (1991), p. 299. 10

Criminal Enforcement Jurisdiction in Ship-Source Pollution Cases   101 The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not: (a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or (b) discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. [author’s italics]

Clearly, the exercise of an enforcement measure such as the physical inspection of a ship in transit would (at least temporarily) interrupt the vessel’s passage for the duration of the inspection. It would, however, be contrary to the provisions of Part XII, including Article 220, to suggest that coastal States are wholly precluded from interfering with vessels exercising the right of innocent passage through the territorial sea. The right of a coastal State under Article 220(2) UNCLOS to inspect a foreign vessel transiting its territorial sea is not, in itself, conditional on the existence of an allegation that the vessel has committed a wilful and serious pollution violation. In principle, a coastal State is entitled to inspect a vessel where a violation has been committed negligently or where pollution has resulted from, for example, an accident or casualty. Without a thorough inspection, it will generally be difficult for a coastal State to determine the reason for a spill, as well as questions relating to fault and the extent of the damage. According to Article 220(2), a coastal State may generally undertake a physical inspection of a foreign vessel navigating its territorial sea “where there are clear grounds for believing” that the vessel has, while in the territorial sea, committed a violation of national or international discharge standards. If the coastal State obtains sufficient evidence that a violation has taken place (“where the evidence so warrants”, to quote the provision), it may also institute proceedings, including detention of the vessel, in accordance with its laws. It is important to note that a coastal State acting under the authority granted by Article 220 must also take account of Article 24(1), which prohibits coastal States from discriminating “against the ships of any State or against ships carrying cargoes to, from or on behalf of any State”. Thus a coastal State is not entitled to stop a foreign vessel exercising the right of innocent passage through its territorial sea merely because the vessel’s flag State has a poor safety reputation.12

 Cf. Article 228, discussed in more detail in Section 7.4 below, which authorizes a coastal State to ignore a request for a case to be transferred to the jurisdiction of a flag State with a poor enforcement record.

12

102   Part Three In any case, a coastal State should only intervene in cases where the alleged violation is sufficiently serious to justify enforcement at sea. Minor discharge violations will probably not justify the physical inspection and detention of a ship in transit, but can be dealt with by port authorities (especially given the practical difficulties of stopping a ship in transit compared with an inport inspection). In some circumstances, however, minor but apparently intentional discharges may warrant an immediate response by the coastal authorities in order to ensure that the perpetrator does not avoid enforcement measures by the coastal State by leaving the territorial sea. Article 220 does not expressly require measures taken against foreign vessels in the territorial sea to be limited to what is strictly necessary for the purposes of enforcing the environmental regulations of the coastal State.13 Nonetheless, any enforcement action taken by the coastal State against a ship in transit must respect the right of foreign vessels to innocent passage. Accordingly the action must be lawful and reasonable, although at the same time the coastal State should take due account of its right to prevent and penalize pollution of its marine environment. Thus, in the Saiga, the International Tribunal for the Law of the Sea (ITLOS) explained that States have an obligation under international law to refrain from the excessive use of force, stating inter alia that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.14

That coastal States are subject to a positive obligation under international law to ensure the safety of any enforcement measures is confirmed by Article 225 UNCLOS “Duty to avoid adverse consequences in the exercise of the powers of enforcement”, as well as by other provisions on safeguards discussed in more detail elsewhere. It is also worth mentioning that Article 220(2) does not link the coastal State’s right to take appropriate enforcement measures in the territorial sea to the seriousness of the damage caused by the violation. It is sufficient that the vessel, while in the territorial sea, has violated laws and regulations “for the prevention, reduction and control of pollution from vessels”.15 This

 Cf. Article 73 UNCLOS on coastal State enforcement with respect to living resources in the EEZ: a coastal State may take measures “as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.” 14  See M/V Saiga (No. 2) (St. Vincent v. Guinea), 120 I.L.R. 143 (Int’l. Trib. L. of the Sea 1999), paras 155–159. 15  See also Molenaar (1998), p. 247. 13

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contrasts with the provisions on pollution violations within the EEZ, which link the authority of the coastal State to interfere with foreign ships to the extent of the damage caused by the incident. Although Article 220 UNCLOS does not clarify the scope of the “physical inspection”, this is regulated elsewhere in UNCLOS and is normally limited to an inspection of the vessel’s certificates and other relevant records. Article 226 UNCLOS lays down requirements (restrictions) on the scope of investigations undertaken by coastal and port States in respect of foreign vessels. These requirements apply, in principle, to enforcement both in port and at sea, and do not distinguish between inspections relating to violations in the coastal State’s territorial sea or in the EEZ.16 Where a vessel that is suspected of having committed a pollution violation in the territorial sea is navigating in the territorial sea at the time of inspection, the coastal State is authorized by Article 220(2) to detain the vessel and institute proceedings in accordance with its laws. Thus the vessel may be ordered to proceed to a port of the coastal State for physical inspection for the purposes of Article 220(2).17 Article 220(2) neither authorizes nor prohibits expressly the making of such an order, but a decision by the authorities of the coastal State to do so requires them, once again, to weigh the reasons for the order and its usefulness (e.g., severe weather conditions make inspection at sea impossible) against the constraints it will impose on freedom of navigation and the vessel’s right to innocent passage. Clearly, the test applied in this situation should reflect the general spirit of UNCLOS, which aims to achieve a compromise between flag and coastal State interests. The test should also take into account other considerations, however, such as the possible implications for the coastal State’s interests of excessive enforcement.18 In any event, a State will normally institute criminal proceedings where a discharge violation is sufficiently serious, although the actual decision to do so is left to the coastal State (“in accordance with its laws”). Article 220 UNCLOS does not regulate the situation where a vessel, having committed a discharge violation in the internal waters or territorial sea of a coastal State, leaves these waters to sail in the EEZ (or on the high seas, as the case may be). The loss of an opportunity to inspect the delinquent vessel, or at least to obtain the information necessary to institute proceedings elsewhere (in the flag or port State), may in practice deprive the coastal State  Molenaar (1998), p. 460.  Ibid., p. 246. 18  Apart from the coastal State’s general obligations under international law, there is the practical consideration that such actions may have negative consequences for the coastal States’ own ships in other States’ jurisdictions. 16 17

104   Part Three of a possibility either to impose sanctions itself or to have sanctions imposed by another State.19 Legal commentators point out, reasonably enough, that there seems to be no fundamental reason why Article 220 should deny a coastal State the opportunity to take enforcement measures within its EEZ for violations committed within its territorial sea.20 Nevertheless, the wording of Article 220 UNCLOS does support a narrow construction of the coastal State’s enforcement jurisdiction.21 In this author’s view, the coastal State at least retains the right to implement the measures envisaged in Article 220(3), (5) and (6), which apply to delinquent foreign vessels in the EEZ.22 Alternatively, the coastal State may resort to port State enforcement jurisdiction. Furthermore, UNCLOS extends the coastal State’s jurisdiction over certain types of violations committed within its territorial sea to its contiguous zone, i.e., waters adjacent to the territorial sea of a certain breadth (not exceeding 24 nautical miles from the baselines).23 If a State has established an EEZ, the concept of a contiguous zone will generally be irrelevant as far as Article 220(3), (5) and (6) are concerned. Nevertheless, a coastal State may undertake a considerably broader range of measures in the event of a pollution violation by a foreign vessel in its contiguous zone (functioning as an extension of its territorial sea) than in its EEZ. Article 33 UNCLOS provides in this respect that 1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

The question is whether the authority granted by Article 33 can be construed to include anti-pollution laws and regulations. Article 33 appears potentially to authorize a coastal State to take measures vis-à-vis foreign ships involved

 Generally, a vessel (and the persons on board) may not be entirely immune to criminal prosecution by the coastal State even though the vessel has left the waters under the coastal State’s jurisdiction. Nonetheless, the coastal State may be deprived of enforcement opportunities in practice if the flag State, or another State that has obtained custody of the vessel, exercises its criminal jurisdiction. 20   Molenaar (1998), pp. 383–384. 21  Cf. Article 27(2), which provides the coastal State with the right to take certain enforcement measures (arrest and investigation) vis-à-vis vessels sailing in its territorial sea where a violation has been committed within its internal waters. 22  Molenaar (1998), p. 384. 23  The contiguous zone must be formally claimed by the coastal State, similarly to the EEZ. 19

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in pollution violations as part of its enforcement of “sanitary” regulations. Some commentators reject this possibility, in particular in view of the wording of this provision and the fact that UNCLOS deals separately with infringements of sanitary laws and anti-pollution rules.24 Lastly, Article 111 UNCLOS on hot pursuit may provide a coastal State with possible grounds for enforcing inter alia discharge standards against a foreign ship beyond its territorial waters, albeit subject to certain conditions. Does a different enforcement regime (i.e., a regime giving more extensive enforcement jurisdiction to the coastal State than the regime set forth in Part XII) apply within the territorial sea of a coastal State to vessels that are not in innocent passage within the meaning of UNCLOS? One interpretation, which is generally accepted, is that the coastal State has at least the powers granted by Article 220(2) vis-à-vis a ship in a noninnocent passage, including the power to institute criminal proceedings.25 Molenaar also points out that Article 220(2) refers to “passage”, not “innocent passage”, suggesting in any event that vessels in non-innocent passage are included within its scope.26 As a starting point, UNCLOS allows a coastal State to “take the necessary steps in its territorial sea to prevent passage which is not innocent.”27 A ship may lose the protection associated with her right of innocent passage if she breaches the conditions attached thereto under the law of the sea as codified in Section III of Part II UNCLOS. Article 10 UNCLOS provides that a foreign vessel violates her right of innocent passage if she engages in activities “prejudicial to the peace, good order and security of the coastal State”, as envisaged in Article 19 UNCLOS. The exhaustive list of such activities set forth in Article 19 includes, in particular, an act of serious and wilful pollution in the territorial sea (Article 19(2)(h)). Thus, in cases covered by Article 19(2)(h), the coastal State affected by the pollution will prefer to avail itself of the relatively broad jurisdiction granted by Article 220(2) and detain the vessel. The coastal State also retains the right to institute proceedings and impose penalties for violations committed in the coastal State’s territorial sea, instead of surrendering this right to the flag State (as would generally be the case if the discharge occurred in its EEZ).28 Is a coastal State entitled to detain or deny passage through its territorial sea to a substandard ship not complying with international standards for  See, e.g., Molenaar (1998), p. 277. Articles 19 and 21 address infringements of sanitary laws and pollution separately (see 19(2)(g) and (h) and 21(f ) and (h)). 25  See Molenaar (1998), p. 249 and his footnote 163. 26  Molenaar (1998), pp. 249–250. 27  Article 25(1) UNCLOS. Molenaar (1998), p. 249. 28  See Section 7.4 below. 24

106   Part Three construction, design, equipment and manning (CDEM) in order to prevent a disaster from taking place in its coastal waters, even if the ship has not (yet) caused any wilful and serious pollution? UNCLOS does not expressly envisage such a right for coastal States, except where the ship is heading either to internal waters or to call at a port facility outside internal waters, in which cases the coastal State is granted “the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject.”29 In all other cases (i.e., where a ship is in transit), the coastal State has no choice but to tolerate a substandard and environmentally unsafe ship that is proceeding reasonably swiftly (thus complying with the requirement for innocent passage to be “expeditious”) through the territorial sea. Do the safeguards envisaged in Section 7 of Part XII apply to vessels that are not protected by the right of innocent passage? This is discussed in more detail later in this Part. 5.3  Inspection and Detention of Foreign Vessels in the EEZ The interdiction by a coastal State of a foreign vessel suspected of having committed a pollution violation within the EEZ may, according to UNCLOS, take place only for particularly serious reasons. In addition, the coastal State may only invoke the violation of “applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards” [author’s italics]. Thus the coastal State is not entitled to prescribe and enforce any stricter national rules or standards with regard to pollution within the EEZ.30 The legal basis for a coastal State’s intervention vis-à-vis a foreign vessel in transit through its EEZ is set forth in Article 220(3), (5) and (6) UNCLOS. For the purposes of these provisions, it is irrelevant whether the enforcement action takes place in the EEZ of the coastal State (i.e., in the maritime zone where the violation was committed) or in the territorial sea, assuming the delinquent vessel has proceeded there following the incident. The type and scope of enforcement measures available to a coastal State with regard to pollution violations committed within its EEZ depend on two factors: firstly, the gravity of the violation; and secondly, the extent of the resulting environmental damage. As a starting point, the coastal State is only entitled to request the delinquent vessel to provide certain information. Article 220(3) states:   Article 25(2) UNCLOS.   See Chapter 3 above.

29 30

Criminal Enforcement Jurisdiction in Ship-Source Pollution Cases   107 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 of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred. [author’s italics]

Flag States, for their part, are obliged to adopt laws and regulations and take other measures to ensure that the vessels flying their flags comply with requests for information made pursuant to Article 220(3).31 What steps may the coastal State take if the information supplied by the vessel is either insufficient or false? Or where the vessel simply ignores the request? Or where the information supplied confirms the coastal State’s suspicions that the vessel has infringed the discharge rules? Unlike paragraphs (5) and (6) of Article 220, which deal with more serious pollution cases, Article 220(3) does not authorize the coastal State to take any further action, other than merely repeating its request for information. In cases involving a “220(3) violation”, Article 220 thus grants rather limited enforcement possibilities to the coastal State. What constitutes a 220(3) violation can be determined by comparing the wording of Article 220(3) with that of the following paragraphs. A coastal State that lacks a legal basis to carry out an inspection should attempt to avail itself of port or flag State jurisdiction. However, this may be impossible in practice if attempts to identify the vessel and/or its route are unsuccessful.32 In cases where the suspect vessel fails to supply information and the pollution amounts to a “substantial discharge causing or threatening significant pollution of the marine environment” the coastal State acquires somewhat extended powers that allow it to undertake a physical inspection of the vessel. Article 220(5) provides 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 [of applicable

 Article 220(4) UNCLOS.  In practice, States enter into practical cooperation arrangements and also require ships to install technical means of identification, such as automatic vessel identification systems. This facilitates the process of obtaining information about vessels in transit. On European Union efforts to establish systems for detecting pollution and tracing vessels, see the information about CleanSeaNet on the website of the European Maritime Safety agency http://www .emsa.eu under “Operational Tasks”, Section Marine Pollution Preparedness & Response.

31 32

108   Part Three international rules and standards for prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards] 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 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. [author’s italics]

Thus even a serious pollution violation within the EEZ does not per se authorize the coastal State to do more than request information from the ship while she is transiting the EEZ. Physical inspection—but not the institution of proceedings or the detention of the vessel—is permitted only subject to the satisfaction of two further (cumulative) conditions: i) the information supplied by the ship must be deficient; and ii) inspection must be justified by the circumstances of the case. UNCLOS does not elaborate the latter criterion, leaving the coastal State to decide whether an inspection is necessary. In this author’s view, one ground for inspecting a ship in transit would be a risk that evidence of the violation would be lost or removed if a physical inspection were not conducted immediately. Other grounds could include concerns that neither the flag State nor the port State to which the vessel is proceeding is likely to assist in any enforcement action. Unlike Article 220(3), which simply refers to “a violation”, Article 220(5) applies only where the discharge is both substantial and also has certain consequences, i.e., “causing or threatening significant pollution”. Such a discharge is also more likely to fall within the scope of the coastal State’s domestic criminal law. Even so, restrictions on the enforcement measures available to the coastal State, including the non-availability of detention, will force it to resort, once again, to invoking port State (or flag State) enforcement, unless the ship subsequently enters a port of the coastal State, triggering the application of Article 220(1). This may make criminal prosecution of the delinquent vessel impossible in cases where the enforcing port State or flag State either lacks a legal basis in its domestic law to institute proceedings to impose penalties or does not consider such measures to be appropriate in the particular case. A related issue concerns the understanding of the words “clear grounds for believing”, which appear in Article 220(3) and (5). According to Nordquist, the last sentence of Article 220(3) suggests that the expression “clear grounds for believing” carries the connotation of a strong prima facie case.33 However,  Nordquist (1991), p. 300. The Conference on the Law of the Sea (UNCLOS III) was also unwilling to substitute “reasonable” for “clear”.

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it is clear from Article 220(6) (addressing major damage to the marine environment) that the evidentiary threshold applicable in this latter case, which is based on a requirement for evidence that is both “clear” and “objective”, is considerably higher than that required in Article 220(3) and (5).34 Article 220(6) deals with pollution “causing major damage or threat of major damage to the coastline or related interests of the coastal State”. In this situation the coastal State is entitled not only to inspect the allegedly delinquent vessel but also to detain it and institute proceedings. When there is “clear objective evidence” of such a violation, the coastal State will be permitted to take more extensive enforcement measures (i.e., detention and institution of proceedings) than mere physical inspection. The requirement for “clear objective evidence” ensures a higher level of certainty than simply “grounds for believing”.35 Molenaar notes that Similar to the modalities of enforcement in the territorial sea, the paradox presents itself that while evidence can often only be obtained through physical inspection, such inspection is only possible when coastal States have these ‘clear grounds for believing’. Meeting this requirement depends, for discharge violations, to a large extent on the stringency of discharge standards and the probative value of visual observations. Moreover, while ‘clear grounds for believing’ most likely originate from notifications or aerial surveillance, ‘clear objective evidence’ seems to be most likely obtained through the physical inspection in paragraph (5).36

In contrast to Article 220(3) and (5), which speak of pollution of the “marine environment”, Article 220(6) refers to “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”.37 Major damage clearly implies pollution of a more serious nature than “significant” pollution, although the distinction may be difficult to make in practice.38 According to Nordquist, the convention’s historical context (cf. the Amoco Cadiz

 The expression “clear grounds for believing” contains a subjective element, at least as construed in the Paris Memorandum of Understanding on port State control. Thus, Annex 9 of the Memorandum suggests (para. 3) that “clear grounds” exist when a port State officer finds evidence which “in his professional judgment” warrants a more detailed inspection. Some examples of “clear grounds”, such as the absence of valid certificates or other documents, are also given in the Memorandum (full text available at http://www.parismou.org). 35  Molenaar (1998), p. 385. 36  Ibid. 37   Article 221 UNCLOS suggests that “coastal and related interests” in any event include fishing. 38  Molenaar (1998), p. 387; Kwiatkowska (1989), p. 183. 34

110   Part Three and other similar disasters) illustrates the kind of situation addressed by this provision.39 Furthermore, UNCLOS does not define the “marine environment”. Concepts such as the “coastline and other related interests” and the “resources of [the coastal State’s] territorial sea or exclusive economic zone” are also not explained, but appear to be more specific than the “marine environment” in general. This suggests that there is an obligation on the coastal State authorities to obtain evidence that some of these interests were damaged by the spill (which clearly will not be difficult in practice if major damage has occurred). In the absence of more specific definitions in UNCLOS, this is a matter for interpretation by the coastal State. Even where a discharge violation has caused major damage, Article 220(7) restricts the coastal State’s jurisdiction to detain the ship, which should not be held for too long: Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organisation or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed.

Apparently this provision does not deprive the coastal State of its general powers to inspect the vessel in transit in the event of a discharge violation or to institute criminal proceedings in that regard, but merely precludes detention of the vessel after the bond has been posted, as would usually be the case. Where a casualty has caused major damage to the coastline, it is also quite possible that the vessel will be in no condition to navigate, instead requiring (at best) assistance to proceed to a shipyard. Even in these cases, however, the detention of the master and the crew may be viewed as necessary by the coastal State. Article 220 UNCLOS does not regulate the more complex scenario where a vessel has been “caught” committing repeated discharge violations in the State’s EEZ. While each discharge in itself might be insignificant, the discharges overall could constitute a significant or major threat to the environment. Is a coastal State that is repeatedly affected by discharge violations from the same vessel entitled to apply the measures envisaged in Article 220(5) or (6) UNCLOS? The fact that these paragraphs refer to “a discharge” may preclude this, meaning that the coastal State will not be entitled to interfere with the perpetrator in transit. Article 220 does not address situations where a delinquent vessel involved in a pollution incident in a State’s EEZ has subsequently proceeded to the  Nordquist (1991), p. 301; Molenaar (1998), p. 387.

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high seas without entering either the territorial sea or internal waters of the latter State. However, as discussed later in this Part, the absence of powers to stop and detain a foreign vessel involved in repeated violations in the EEZ does not, in principle, terminate the coastal State’s jurisdiction under international law to initiate criminal proceedings in respect of a discharge violation committed by a foreign vessel.40 A coastal State that finds itself in such a situation may either notify the flag State of the suspected delinquent vessel (if the flag State is known) or send a request to a port State where the vessel is scheduled to call. 5.4  Interdiction of Foreign Vessels on the High Seas Generally, only the flag State has the jurisdiction to stop, board and detain a vessel flying its flag on the high seas. A ship on the high seas may be viewed as an extension of the flag State’s territory. The act of boarding a foreign vessel or of taking enforcement action on board is equivalent to exercising enforcement jurisdiction within the territory of another State. Flag States are, of course, also subject to the same principle and are not permitted to take enforcement action vis-à-vis their own ships while in foreign ports or waters.41 Article 92(1) UNCLOS confirms the exclusive jurisdiction of the flag State over a vessel flying its flag on the high seas “save in exceptional cases expressly provided for in international treaties or in this Convention”.42 These exceptions relate to the seizure of pirate ships and aircraft,43 and the arrest of persons or ships engaged in unauthorized broadcasting.44 UNCLOS

 Such a view was, for example, rejected by the Supreme Court of Sweden: see text accompanied by footnote 131 below. 41  See, e.g., Akehurst, p. 147. However, flag States are not precluded from taking enforcement action in foreign States’ EEZs vis-à-vis their own vessels. Article 58 UNCLOS confirms that foreign vessels enjoy freedom of navigation in a coastal State’s EEZ, subject to a requirement to pay due regard to the rights and duties of the coastal State and to comply with laws and regulations adopted by the coastal State. The interdiction by a flag State of a polluter would be a desirable situation for the coastal State which, as discussed above, is itself restricted with regard to enforcement in its EEZ. 42  See also Article 6 of the Convention on the High Seas (done at Geneva on the 29 April 1958, in force on the 30 September 1962), 450 U.N.T.S. 11, p. 82. 43  Article 105 UNCLOS. 44  In contrast to the situation with the seizure of pirates, only certain States have jurisdiction to make an arrest in cases of unauthorized broadcasting (i.e., the flag State, the State of nationality of the arrested person, a State where transmissions can be received or a State where authorized radio communications are suffering interference): see Article 109 UNCLOS. On the interdiction of ships on the high seas generally see Becker (2005) and Guilfoyle (2009). 40

112   Part Three also provides that States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances and encourages the flag State of a suspect ship to request the cooperation of other States to suppress such traffic.45 In addition, Article 110 “Right of visit” authorizes a State to board a foreign-flagged vessel on the high seas where a State has “reasonable ground” for suspecting that the ship is engaged either in piracy, the slave trade or unauthorized broadcasting. Furthermore, ships without nationality or ships that have, in reality, the same flag as the interdicting vessel, may also be boarded under this provision. In cases not expressly envisaged in UNCLOS or other international treaties, coastal States are not entitled to interdict foreign vessels on the high seas. UNCLOS is absolutely silent on the rights of non-flag States to stop and seize foreign ships and persons on board where such ships are involved in environmental violations on the high seas. In addition, Article 97 UNCLOS prohibits non-flag States from ordering (even for the purposes of carrying out an investigation) the arrest or detention of a foreign ship on the high seas in cases involving collisions or other incidents of navigation.46 A non-flag State may however obtain the flag State’s permission to take such action, but the criteria for granting such permission will be interpreted narrowly. Thus in Medvedyev v France, a merchant ship, the Winner, flying the Cambodian flag was intercepted by a French naval ship on suspicion of involvement in drug trafficking and was forced to proceed to the port of Brest. Cambodia authorized the French authorities to intercept, inspect and take legal action against the Winner. The crew was detained on board the ship and, upon arrival in France, remained in custody pending trial. The crew members subsequently appealed to the European Court of Human Rights (ECtHR), complaining that both the arrest of the Winner and their detention on board for 13 days were illegal.47 The Court examined the relevant international treaty provisions and agreed that, generally, Article 108 UNCLOS gave France a legal basis for intercepting and boarding the Winner. However, the Court also considered the wording of the diplomatic note from the Cambodian Ministry of Foreign Affairs and concluded that the note could not be interpreted as agreeing not only to

 Article 108 UNCLOS.  The wording of Article 97(3) does not, however, limit the prohibition on arrest to the high seas, implying that the prohibition may also extend to the port of a non-flag State where the vessel has subsequently called. For a more thorough discussion of this provision see Section 6.2 below. 47  Case of Medvedyev and Others v. France (Application No. 3394/03), ECtHR, Grand Chamber, Judgment of 29 March 2010. On the detention in the Medvedyev see also Section 7.5 below. 45 46

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the “planned interception” but also to “all its consequences”, including the 13 days’ detention imposed on the crew members on board the ship.48 In any case, in practice coastal States will unlikely to request a flag State for permission to interdict a perpetrator of pollution on the high seas. Even if a coastal State were to do so, the flag State would be unlikely to grant such permission.49 Article 220 UNCLOS, which authorizes a coastal State (subject to a number of conditions) to detain a foreign delinquent vessel in its EEZ, does not provide for an equivalent right outside the EEZ, even if the EEZ is affected by the pollution. Only if the delinquent vessel subsequently calls at a port of the coastal State will the coastal State be entitled to detain the vessel and institute proceedings pursuant to Article 218 UNCLOS. Thus Article 220 does not permit a coastal State to stop and inspect a foreign vessel suspected of a discharge violation while sailing on the high seas, even if the violation affects the environment of the coastal State.50 Where a pollution violation has been committed within the territorial sea or internal waters of a coastal State, and the delinquent vessel has left these waters in an attempt to avoid enforcement measures by the coastal authorities, the coastal State may be able to avail itself of the right of hot pursuit set forth in Article 111 UNCLOS.51 Article 111(1) provides, inter alia, that The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. [author’s italics]

 Medvedyev, op. cit., para. 98 et seq.  Instead of allowing each other to exercise enforcement jurisdiction on each other’s territories (or on each other’s ships), States have developed cooperation mechanisms for the enforcement of safety rules. Thus Article 218 provides a coastal State with the opportunity to request the port State, where the allegedly delinquent vessel has called, to carry out an inspection and institute proceedings, where necessary (see Section 6.3.4 below). 50   Even in the case of the Lotus (discussed in more detail in Section 6.1 below), in which the Permanent Court of Justice granted a very broad scope of extraterritorial jurisdiction to States, no enforcement action vis-à-vis the foreign delinquent vessel took place on the high seas (where the collision and resulting deaths had occurred). The vessel called voluntarily at a Turkish port after the collision, and the arrest was made in Turkish territory. 51  The right of hot pursuit is more actively exercised in contexts such as fisheries, as is reflected in a number of ITLOS judgments, and drug smuggling, but could, in principle, also be used in cases involving pollution violations. See also the M/V Saiga (No. 2) (St. Vincent v. Guinea), 120 I.L.R. 143 (Int’l. Trib. L. of the Sea 1999), paras 147–148. 48 49

114   Part Three According to Article 111(4) UNCLOS, the pursuit may “only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship”. Furthermore, it is not sufficient for the pursuing State to commence hot pursuit merely on the basis of a suspected violation. The right of hot pursuit ceases when the pursued vessel enters the territorial waters of another State.52 Hot pursuit will only be lawful if all the cumulative conditions set forth in Article 111 are met.53 In cases where these conditions are not satisfied, the coastal State will generally have to pay compensation to the flag State.54 Thus, Article 111(8) provides, Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.

Nonetheless, by virtue of Article 221 UNCLOS, coastal States have certain powers to take measures against ship-source pollution arising from accidental discharges caused by maritime casualties beyond the EEZ. Notably, Article 221 authorizes the coastal State to take enforcement measures beyond the territorial sea. This article can be interpreted as applying both to the EEZ and to the high seas.55 Is a coastal State that has not established an EEZ entitled to detain a foreign vessel (as would be permitted under Article 220 if an EEZ had been established) in the waters adjacent to its territorial sea that would otherwise fall within the boundaries of its EEZ?56 Some legal commentators take a positive view of a coastal State’s right to take such measures regardless of the lack of a formally established EEZ. Thus, according to Molenaar,  Article 111(3) UNCLOS. An exceptional case is the Resolutions (2008–2011) of the UN Security Council permitting States to interdict pirates in the maritime waters under the jurisdiction of Somalia (with the consent of Somalia). 53  See the Saiga (No. 2), cited in footnote 51 above, para. 146. 54  See the Saiga (No. 2), op. cit., where the ITLOS ruled that the exercise of the right of hot pursuit by Guinea to arrest the Saiga did not, in the circumstances of the case, comply with Article 111. However, see the discussion in Section 6.3.4 below on the implications under international law of an unlawful seizure on jurisdiction to impose penalties. 55  See also Article 1(1) of the International Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties, adopted on 29 November 1969 (entered into force May 6, 1975), 970 U.N.T.S. 211 (limited to the high seas but generally regarded as also covering the EEZ); Molenaar (1998), p. 388. Molenaar (1998), p. 386 suggests that “it would not be unreasonable that Article 220 is used with respect to ships involved in incidents of navigation in case all requirements of Article 220 are met, but not those of Article 221”. 56  Sometimes an EEZ is not established for geographical reasons or due to a dispute about maritime delimitation. On EEZs generally see Section 3.3 above. 52

Criminal Enforcement Jurisdiction in Ship-Source Pollution Cases   115 Where violations that fall under Article 220(3) occur on the high seas in areas which would have been clearly within the EEZ, and have the effects described in Article 220(5 and 6) on its territorial sea, coastline or related interests, the coastal State would have the same powers permitted in these provisions, but only where the ship alleged to have committed the violation navigates in its territorial sea. Such jurisdiction can be based on the objective territorial principle and does not seem inconsistent with the rationale behind Article 220.57

In principle, a pollution violation that causes damage within a coastal State’s territory gives rise to enforcement jurisdiction under international law. If the ship then calls at one of the coastal State’s ports, the coastal State will be able to institute criminal proceedings. The interdiction of the delinquent vessel in waters outside the territorial sea (i.e., on the high seas, assuming no EEZ has been established) will not, however, be permitted (apart from in the circumstances discussed above). Moreover, as mentioned earlier, Article 220(3) precludes a coastal State from stopping a vessel in its territorial sea on the grounds of a discharge violation committed outside its territorial sea. The detention of the delinquent vessel, the arrest of the crew and the investigation of the violation will not necessarily culminate in a criminal prosecution and a court judgment. Reasons for this may include either a lack of a proper substantive and procedural basis in the coastal State’s domestic criminal law or insufficient evidence. However, even where a coastal State has the power to inspect and, as the case may be, detain the vessel, it may still lack enforcement jurisdiction under international law to prosecute the offence. For example, the jurisdiction of another State, notably the flag State, may supersede the coastal State’s jurisdiction. The discussion below examines States’ jurisdiction under international law to prosecute and impose criminal sanctions for ship-source pollution violations.

6  Jurisdiction with Regard to Criminal Prosecution in Ship-Source Pollution Cases 6.1  Introduction This chapter examines States’ jurisdiction under international law to prosecute and punish the perpetrators of ship-source pollution. In particular, it discusses the principles under international law for allocating jurisdiction to prosecute in cases where two or more States assert such jurisdiction. Under the territorial principle of jurisdiction, a State may prosecute and punish crimes committed by its own nationals or by foreigners within its  Molenaar (1998), p. 248.

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116   Part Three own territory.58 At the same time, the flag State has jurisdiction over the vessels flying its flag irrespective of where they sail. Under the law of the sea, flag State jurisdiction has been viewed both as quasi-territorial in character (the ship as floating territory of the flag State) and also as based on the principle of nationality.59 To avoid conflicts with the flag State’s jurisdiction, other States have traditionally refrained from interfering with internal matters on board foreign ships unless their own interests are somehow affected. Accordingly, enforcement action has traditionally only been taken against a foreign vessel in those (exceptional) cases when the coastal State itself has been affected by the conduct of the vessel’s crew. Ship-source pollution violations are, by their very nature, unlikely to affect only the internal affairs of a vessel. For vessels involved in international trade, this means that other States as well as the flag State may want to exercise criminal jurisdiction. Nowadays it is becoming increasingly common for non-flag States to exercise criminal jurisdiction over foreign vessels involved in pollution violations. So far the only judgment by an international tribunal to deal directly with a conflict of criminal jurisdictions under international law is the ruling of the Permanent Court of International Justice (the PCIJ) in the Lotus, which involved a dispute between Turkey and France.60 On 2 August 1926, five to six nautical miles north of Cape Sigri (i.e., on the high seas), the French mail steamer the Lotus, proceeding to (then) Constantinople in Turkey, collided with the Turkish collier the Boz-Kourt. The Boz-Kourt was cut in two and sank, resulting in the deaths of eight Turkish nationals on board. After having done everything possible to rescue the shipwrecked persons, of whom 10, including the captain, were saved, the Lotus continued on its course and arrived in Constantinople on 3 August. At the time of the collision the officer on watch was the ship’s first officer, Lieutenant Demons, a French citizen. The Turkish police conducted an inquiry into the collision on board the Lotus and Demons was requested by the Turkish authorities to go ashore to give evidence. Following questioning, Demons was placed under pre-trial arrest in order to ensure that his criminal prosecution on a charge of manslaughter should “follow its normal course”.

 On the territorial principle of criminal jurisdiction generally see, e.g., Shaw (1997), Brownlie (2008), p. 301, Mann (1973), Empson (1967–1968), p. 32. 59  Churchill and Lowe (1999), at p. 257, point out that nowadays flag State jurisdiction is generally considered to be based on nationality rather than territoriality. This view is supported by Article 91 UNCLOS. See also Section 2.1 above. 60  The S.S. Lotus, 2 P.C.I.J. Reports 33 1935. 58

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Lieutenant Demons objected to this exercise of jurisdiction by the Turkish court, but the court overruled his objection. He was subsequently released on bail before being sentenced, on 15 September, by the Criminal Court to 80 days’ imprisonment and a pecuniary fine.61 The dispute before the PCIJ centred on whether Turkey had contravened the principles of international law by instituting proceedings following a collision on the high seas.62 The Convention of Lausanne (1923), which applied at that time to relations between Turkey and France, provided inter alia that “all questions of jurisdiction shall, as between Turkey and other contracting Powers, be decided in accordance with the principles of international law”.63 The Court began by noting that the violation, if any, consisted in the very exercise of criminal jurisdiction and did not concern any particular stage of the criminal proceedings against the French officer (such as his arrest, trial or conviction).64 Furthermore, the Court established that the intent of the Lausanne Convention was not to limit jurisdiction with regard to crimes committed abroad in any (specific) way.65 The Court proceeded to examine the legal situation under international law generally and discussed whether jurisdiction under international law depended exclusively on the existence of some permissive rule of jurisdiction, as was submitted by the claimant (France). Turkey argued that, on the contrary, only the existence of a prohibitive rule could prevent a State from exercising its jurisdiction with regard to crimes committed abroad. Firstly the Court examined the general nature of jurisdiction under international law. As a starting point, the Court stated, Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.66

 The surviving captain of the Boz-Kourt was also prosecuted and punished somewhat more severely. 62  France also claimed pecuniary reparation for Demons in the event Turkey was found to have acted in violation of international law. This claim was not considered by the Court, however, because France’s claims were denied on their merits. 63  The Convention of Lausanne of 24 July 1923, concerning conditions of residence and business and jurisdiction. On the Court’s discussion of the intent of the Convention with respect to jurisdiction, see pp. 33–34 of the judgment in the Lotus. 64  Lotus, op. cit., p. 30. 65  On the Court’s discussion of the intent of the Convention of Lausanne with respect to jurisdiction, see pp. 33–34 of the Judgment. 66  Lotus, p. 35. See also 5 above on the arrest of foreign vessels by coastal States. 61

118   Part Three The Court then noted that States remained free in general to exercise jurisdiction in their own territories in respect of acts that had taken place abroad, and that this discretion was only limited in certain cases by prohibitive rules. The Court further stated, In these circumstances, all that can be required of a State is that it should not overstep the limits which the international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.67

The Court then examined whether these considerations applied to criminal jurisdiction, or whether such jurisdiction was governed by a different principle, as a result of the “close connection which for a long time existed between the conception of supreme criminal jurisdiction and that of a State”, in the light of the “special importance of criminal jurisdiction from the point of view of the individual.”68 The Court established, however, that although the territorial nature of criminal law is fundamental to all legal systems, nearly all legal systems extend the application of their criminal laws to offences committed outside the State’s territory. Accordingly the Court did not consider the territorial nature of criminal law to constitute an absolute principle that coincided with territorial sovereignty.69 The Court then attempted to ascertain whether there was any rule of international law limiting the freedom of States to extend the criminal jurisdiction of their courts to circumstances such as those in the Lotus. The French government argued that international law did not allow a State, simply by reason of the nationality of the victim, to institute proceedings with regard to offences committed by foreigners abroad. The French position was that, in the present case, the offence had to be regarded as having been committed on board a French vessel. France also put forward two other arguments: first, that international law recognized the exclusive jurisdiction of the flag State over everything that occurred on board a ship on the high seas; and secondly, that this principle was especially relevant in a case involving a collision.70 With regard to the first argument, the Court first observed that the nationality of the victims was not the sole reason for Turkey to claim jurisdiction in this case.71 The case, in the Court’s view, rather concerned a situation where a crime committed within the territory of one State had caused effects

 Ibid., p. 35.  Ibid., p. 36. 69  Ibid., p. 36. 70  Ibid., pp. 37–38. 71  And the Court reserved its opinion as to whether the nationality of the victim could constitute the sole justification for the exercise of jurisdiction. 67 68

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within the territory of another State, i.e., the Turkish vessel was assimilated with Turkish territory. The Court thus dealt with the situation as one of (a special case of ) territorial jurisdiction under international law, rather than as one where extraterritorial criminal jurisdiction was exercised over a foreign vessel.72 The Court did not identify any rule of international law that would deny Turkey jurisdiction over persons, even foreign citizens, in such circumstances. On the contrary, the Court was certain that many countries interpreted the territorial principle in such a way as to include offences as having been committed within the national territory, “if one of the constituent elements of the offence, and more especially its effects, have taken place there.”73 Having taken into account Turkey’s jurisdiction over its own “territory”, given the special circumstances of the case, the Court rejected France’s arguments in the Lotus. Accordingly, the Court found Turkey’s prosecution of a French officer for negligence (considered a crime under Turkish law) committed while on board a French vessel on the high seas to be legitimate under international law. The judgment in the Lotus has not been accepted with any enthusiasm by States and has been criticized by legal commentators.74 Furthermore, the Court emphasized that its analysis was “strictly confined to the specific situation in the present case”, i.e., a case involving a collision on the high seas caused by negligent rather than intentional behaviour.75 It remains unclear whether the outcome would have been different had intentional conduct been involved. Meanwhile, issues concerning intentional discharges on the high seas—including the jurisdiction to prosecute perpetrators—remain high on the international agenda. So far, jurisdiction remains generally with the flag State.

 However, modern legal doctrine generally views “effects jurisdiction” as a category of extraterritorial jurisdiction: see, e.g., Shaw (1997), p. 484. Malanczuk (1997), pp. 110–111, however discusses the “effects” principle as a form of objective territorial principle of jurisdiction. 73  Lotus, op. cit., p. 38. The Court also provided an analysis of legal commentary on this point. See also Section 6.3.3 below regarding the modern legal analysis of the “effects” doctrine. 74  The dissenting judges of the PCIJ in the Lotus (whose number almost equalled the number of judges supporting the judgment) did not accept that it was lawful for a State to prosecute a foreigner for an offence committed abroad (including on the high seas) when such foreigner subsequently entered the State’s territory. Insofar as modern legal theory is concerned, there is no consensus on the validity of the Lotus ruling. Some authors consider it still valid (except where overruled by subsequent treaties with regard to collisions on the high seas), while others state that it has never been good law: see Ryngaert (2008), p. 20 et seq. and Section 3.1 above. 75  Lotus, p. 38. 72

120   Part Three In its judgment the Court also dealt with another issue pertaining to criminal jurisdiction under international law that is relevant to this study, namely, the concurrent jurisdiction of States. Subsequent practice, both of municipal courts and in agreements between States, has not disregarded completely the Court’s findings with regard to the “effects” principle of criminal jurisdiction. This confirms that the Court may have been correct, at least partially, in suggesting that a prohibitive rule is required in order to deprive a State of jurisdiction. As is examined in more detail below, a range of international agreements overrule the Court’s findings on jurisdiction in cases involving collisions on the high seas. These agreements establish the exclusivity of flag State enforcement jurisdiction in such circumstances, including the jurisdiction to impose penalties. UNCLOS, like its predecessors, clarifies the scope of the flag State’s jurisdiction to enforce criminal liability, including liability for ship-source pollution. A flag State not only has the discretion to enforce sanctions for violations of environmental rules by its vessels, but also a positive obligation, at least to some extent, to take enforcement action vis-à-vis perpetrators. 6.2  Flag State Enforcement Jurisdiction in Pollution Cases Even though the Permanent Court of International Justice found in the Lotus that Turkey, in the circumstances of the case, had legitimately exercised its enforcement jurisdiction, the Court also recognized, in principle, the exclusivity of the flag State’s jurisdiction over the ships flying its flag on the high seas.76 This principle is now set forth in Article 92 UNCLOS, which provides that ships shall be subject to the flag State’s exclusive jurisdiction on the high seas “save in exceptional cases expressly provided for in international treaties or in this Convention”. By virtue of this exclusivity, no other State than the flag State is entitled to interdict and board a foreign vessel on the high seas. The only exceptions are those specifically provided for in international law. In the Lotus, the exclusivity of flag State jurisdiction on the high seas was stated to arise from the territorial character of such jurisdiction. The Court noted A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State the flag of which it flies, for, just as in its own territory, that State exercises its authority upon it, and no other States may do so.77

 Ibid., p. 40.  Ibid., p. 40.

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In the Lotus, however, the Court found that the principle of territoriality granted jurisdiction to both France and Turkey. The reasoning was that if a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent.78

The Court did not agree with France that the flag State (of the vessel against which the proceedings were held) had exclusive jurisdiction to prosecute the perpetrators of offences committed on the high seas, especially in collision cases.79 Therefore, in the Court’s view, the fact that interdiction of the delinquent vessel on the high seas was precluded did not necessarily deprive the State affected by the offence, and in whose port the vessel had called, of jurisdiction to prosecute the offender. Following the judgment in the Lotus, several States, which did not agree with the Court’s findings with regard to collisions and other incidents of navigation on the high seas, adopted the International Convention for the Unification of Certain Rules relating to penal jurisdiction in matters of collision or other incidents of navigation (the 1952 Brussels Convention).80 The convention establishes uniform rules for establishing penal jurisdiction in cases involving collisions or other incidents of navigation. Article 1 of the Brussels Convention 1952 provides that In the event of a collision or any other incident of navigation concerning a seagoing ship and involving the penal or disciplinary responsibility of the master

 Lotus, p. 40. To determine whether or not the rule existed to reach a different conclusion, the Court examined (pp. 40–42 of the judgment) legal writings, conventions and relevant cases. The municipal jurisprudence examined by the Court provided differing views as to whether States considered themselves obliged under international law to exercise jurisdiction with respect to collisions between foreign vessels on the high seas. Thus, in Court’s view, the existence of such a rule of international customary law was not conclusively proved by the French government. 79  Lotus, p. 42 et seq. 80  Adopted in Brussels on 10 May 1952 (entered into force on 20 November 1955), 53 Am.J.Int’l L. 536 (1959). On the ratification status of the 1952 Brussels Convention, see the CMI Yearbook 2009, Part III Status of ratification of maritime conventions (available at http://comitemaritime.org/Uploads/pdf/CMI-SRMC.pdf ). States’ understanding that certain rules need to be established by international agreement, ironically enough, confirms the Court’s finding that a prohibitive rule of international law is required to preclude criminal jurisdiction. See also Gold (2006), p. 502, who reports that this provision is often ignored by coastal States. 78

122   Part Three or of any other person in the service of the ship, criminal or disciplinary proceedings may be instituted only before the judicial or administrative authorities of the State of which the ship was flying the flag at the time of the collision or other incident of navigation.

Article 2 of the convention also precludes arrest or detention of the vessel, even as a measure of investigation, by any authorities other than those of the flag State. The convention applies not only on the high seas, but also in the territorial sea, unless the contracting Party has reserved to itself jurisdiction to institute proceedings with regard to offences committed within its own territorial waters.81 The convention does not, however, apply to collisions and other incidents of navigation within the limits of a port or in inland waters.82 An equivalent provision is included in Article 11 of the 1958 Geneva Convention on the High Seas.83 This permits, as an alternative to the flag State of the ship involved in a collision or other incident on the high seas, the State of nationality of the master or “any other person in service of the ship” to institute proceedings to punish these persons. A corresponding provision has subsequently been included in UNCLOS in Article 97. The references to “penal” responsibility and proceedings both in Article 97 UNCLOS and also in the corresponding provisions of earlier conventions have generally been construed to include criminal proceedings. Article 97(1) expressly precludes the jurisdiction of any State other than the flag State (or the State of nationality) either to intervene in respect of collisions and other incidents of navigation on the high seas or to bring criminal charges against the master and the crew in relation to such incidents. UNCLOS does not expressly apply this rule within the EEZ and territorial sea of a coastal State within whose waters an incident has taken place.84 In the light of Article 97(3), which precludes arrest or detention by any State other than the flag State (“even as a measure of investigation”), and does not  Note that at the time the 1952 and 1958 Conventions were adopted, these waters were high seas, since the concept of the EEZ had not yet been established in international treaties. 82  Article 4 of the 1952 Brussels Convention. The application of this principle within the territorial sea was not incorporated into the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. 83  Done at Geneva on the 29 April 1958, in force on the 30 September 1962), 450 U.N.T.S. 11, p 82. 84  However, commentary suggests that Article 97 UNCLOS applies also within the EEZ (of a non-flag State): see Nandan and Rosenne (1995), p. 169. This broad interpretation of Article 97 contradicts Article 86 UNCLOS, which states that this Part (including Article 97) applies to all areas of the sea that are not included in an EEZ, in the territorial sea or in the internal waters of a State. Such an interpretation would also be contrary to the provisions of Part XII with respect to coastal and port State enforcement jurisdiction. 81

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limit this prohibition to arrest on the high seas, Article 97(1) can also be understood as prohibiting in-port enforcement by a non-flag State in cases falling under Article 97.85 Practice shows that States do not always comply with this provision. For example, the United States attempted to exercise jurisdiction over the master, the second officer and a rating, all Russian nationals, of the Virgo, a Cypriot-flagged tanker. The Virgo had allegedly been involved in a hit-andrun collision with a US-flagged fishing vessel, the Starbound, in 2001, causing the deaths of three of the four persons on board the Starbound. By virtue of a mutual assistance treaty between the United States and Canada (where the Virgo subsequently called), the US and Canadian authorities examined the ship and her records and detained the master and the crew. Both the crew members’ State of nationality (Russia) and the flag State (Cyprus) protested against these measures, which were also criticized by legal commentators.86 Does Article 97 also apply to incidents on the high seas that result in discharges of polluting substances from the ship or ships involved? Article 97 does not make any explicit reference to damage to the marine environment caused by a collision or other incident of navigation and does not clarify what implications a discharge of harmful substances from a ship involved in such an incident may have for the jurisdiction of the flag State.87 The phrase “incident of navigation” clearly covers a collision involving one or more ships and can, by analogy, be extended to include a “maritime casualty” as defined in Article 221(2) UNCLOS, i.e., “collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel

 Interestingly, such a construction also precludes arrest by the State of the master’s nationality (which is authorized to institute criminal proceedings under Article 97(1)). However, the express reference to the arrest of the “ship” in Article 97(3) should be understood as not extending the same protection to the crew on board the vessel in cases where their States of nationality institute criminal proceedings. 86  See, e.g., Gold (2005), Cartner, Fiske and Leiter (2009), p. 30, and Ivanov (2002). The detainees were released by the Canadian authorities. However, the measures taken against the Virgo violated Article 97 UNCLOS (or, more precisely, an equivalent provision in the 1958 Geneva Convention on the High Seas, which has been ratified by the United States) irrespective of the Virgo’s actual involvement in the collision and the fact that the individuals involved were not ultimately punished by either Canada or the United States. The crew members returned to their home country and the author has been unable to establish whether proceedings against them were instituted either there or by the flag State. 87  It is unlikely that pollution of the marine environment was the main problem in the minds of the drafters of the 1952 Brussels Convention and the 1958 Geneva Convention on the High Seas. The concerns were, however, already present at an international level, as illustrated by the adoption of the 1954 International Convention for the Prevention of Pollution of the Sea by Oil (“OILPOL”). 85

124   Part Three or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo”.88 Specific provisions set forth in Part XII UNCLOS address non-flag States’ jurisdiction in ship-source pollution cases and are discussed in more detail later in this chapter. These provisions also authorize coastal and port States to implement enforcement measures and to impose penalties for ship-source pollution violations. Nonetheless, they generally confirm that the flag State retains exclusive jurisdiction to impose penalties for accidental pollution violations committed on the high seas by the vessels flying its flag, at least so long as no damage is caused within the maritime zones of other States. At the same time, the flag State has a positive obligation to ensure environmental compliance by the ships flying its flag, including on the high seas. Article 94(1) UNCLOS provides that the flag State must undertake measures in order to “effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag”. While this broad wording does not make express mention of any specific obligation to ensure compliance with, and to enforce, environmental safety standards, Article 94(7) does provide that, Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing . . . serious damage . . . to the marine environment . . . [author’s italics]

This provision expressly restricts the flag State’s duty to take enforcement action to situations involving “marine casualties” and “incidents of navigation” causing “serious damage” to the marine environment. It does not explain in any more detail how “serious” the damage needs to be in order to trigger the flag State’s duty to cause an inquiry to be held. If the degree of

 Although Article 221 makes an express reference to the application of the definition of the incident “solely for the purposes of this article”, Commentary to UNCLOS suggests that the definition for the purposes of Article 97 is the same: see Nandan and Shabtai (1995), p. 168. See also paragraph II-8 of the IMO/ILO Guidelines on Fair Treatment of Seafarers in the Event of a Maritime accident (27 April 2006), which defines a “maritime accident” as “any unforeseen occurrence or physical event connected to the navigation, operations, manouevring or handling of ships, or the machinery, equipment, material, or cargo on board such ships which may result in the detention of seafarers.” See also the IMO Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code, adopted on 16 May 2008), which also includes events that have resulted in “severe damage to the environment, or the potential for severe damage to the environment, brought about by the damage of a ship or ships” (but not deliberate conduct with the intention to cause harm to the environment).

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“seriousness” equates to the threshold specified in Articles 220 or 221, which refer respectively to “significant” pollution or “substantial” or “major” damage to the environment, the threshold for triggering the flag State’s duty to investigate will be rather high. At the same time, Article 94 limits the flag State’s duty to take enforcement action in respect of discharge violations on the high seas to those resulting from accidents. Presumably this excludes operational violations from the scope of the enforcement mechanism. This does not mean, however, that no State has the authority to exercise control over operational violations, which after all constitute a significant proportion of discharge violations on the high seas. Such violations are addressed by the provisions of Part XII UNCLOS dealing more specifically with flag, coastal and port State jurisdiction in cases of ship-source pollution. In addition, Article 97 UNCLOS, discussed above, does not expressly preclude the jurisdiction of non-flag States to institute proceedings with regard to discharge violations resulting not from accidents but from the day-to-day operation of the vessel (i.e., operational discharges). The wording of the UNCLOS provisions does not indicate that a flag State has a duty to prevent or punish all pollution from its ships anywhere in the world, including the high seas. The flag State’s obligation is generally limited to taking “all measures which are necessary to ensure” that incidents do not cause damage to other States and their environments. Similarly, a flag State must not permit pollution from its activities to spread beyond the areas where it exercises sovereign rights. There is no complete prohibition in UNCLOS, however, on discharges that only affect the area over which a flag State exercises sovereign rights. The maximum extent of a flag State’s duty to take enforcement action to prevent and control environmental pollution by its ships is, in general, determined by reference to “rules and standards established through the competent international organisation”.89 As discussed previously, MARPOL90 establishes a general prohibition on discharges irrespective of their cause. Thus both accidental and operational discharges are prohibited, subject to certain exceptions and conditions. MARPOL also requires flag States to penalize all violations of its standards. In particular, in line with Article 217 UNCLOS, it does not allow any exceptions to be made for violations that take place in particular maritime zones. Accordingly we can conclude that the flag State has, in principle, a duty to take enforcement action in respect

  Article 217(4) UNCLOS.  International Convention for the Prevention of Pollution from Ships (1973) as amended by the Protocol of 1978 (MARPOL 73/78). On MARPOL see also Section 2.4 above.

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126   Part Three of all discharges that violate the provisions of MARPOL or other applicable instruments whether committed on the high seas or within the waters of other States. According to Article 217(4) UNCLOS, the flag State shall provide for immediate investigation and where appropriate institute proceedings in respect of the alleged violation. This obligation applies irrespective of where the violation occurred or where the pollution caused by such violation has occurred or been detected.91 In addition, the flag State may not permit a vessel that does not comply with international safety standards to leave port (“prohibited from sailing”). The flag State must also ensure that its vessels carry the appropriate certificates and undergo periodic safety surveys.92 Nonetheless, it may well be impossible, or at least extremely difficult, for flag State authorities to keep track of vessels on the high seas to establish whether discharge violations are being committed. In order to establish whether the discharge rules have been complied with, the flag State authorities or their authorized representatives need to examine the vessel and her documentation (such as oil record books) at times when the vessel is accessible. Although the flag State is responsible, under the law of the sea, for ensuring that its vessels comply with MARPOL discharge standards and other obligations, an essential role is played by the vessel’s master and crew, as well as the shipping company, all of whom are responsible in practice for ensuring the environmentally safe operation of the ship. Where these persons fail to fulfil their respective obligations, the flag State must impose adequate sanctions. Where necessary, the flag State may request other States’ assistance in investigating the matter and instituting proceedings.93 The flag State may also receive information from other States concerning pollution incidents involving its vessels. However, the flag State’s obligation to investigate, and impose sanctions for, violations committed by its vessels is not conditional on the receipt of a request from another State. Where another State does make such a request, however, Article 217(6) requires the flag State to take certain measures: States shall, at the written request of any State, investigate any violation alleged to have been committed by vessels flying their flag. If satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged

 Article 217(5) also provides a flag State conducting an investigation into a violation with the power to request the assistance of any other State. 92  Article 217(2) and (3) UNCLOS. 93   Article 217(5) UNCLOS and Article 218(2) UNCLOS. 91

Criminal Enforcement Jurisdiction in Ship-Source Pollution Cases   127 violation, flag States shall without delay institute such proceedings in accordance with their laws. [author’s italics]94

These obligations of the flag State are not conditional on the violation having occurred in the maritime zone of another State: the obligations also apply to pollution violations committed on the high seas.95 A State does not need to have suffered damage as a result of an alleged discharge violation in order to make such a request to the flag State. However, since UNCLOS does not impose a positive duty on all States to request an investigation by the flag State, such requests are most likely be made where a pollution incident has caused actual or potential harm to a coastal State. Nevertheless, it is important for all pollution incidents potentially involving violations of MARPOL requirements to be reported to the flag State, irrespective of whether any particular interests were actually affected. This is to ensure that the flag State is able to conduct a proper investigation and, where necessary, institute proceedings against the offender(s).96 Generally, no particularly extensive obligations are imposed on the flag State vis-à-vis other States when conducting investigations into pollution incidents at sea. Article 94(7) does not require the flag State to make public its inquiries into casualties or incidents of navigation on the high seas, although it does provide that the “flag State and the other State shall co-operate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.” Article 94(7) only obliges the flag State to co-operate if: firstly, the damage to the marine environment is serious; and, secondly, the pollution in question may be defined as resulting from a “maritime casualty” or “incident of navigation” (which is likely to limit the scope of the obligation to accidental pollution). This means that deliberate pollution violations on the high seas may fall wholly outside the flag State’s duty to co-operate with other States, unless such violations are investigated by the port State or are caught by Article 217(6) UNCLOS.

 Article 4 MARPOL also requires that a flag State, once informed of a violation and satisfied that sufficient evidence is available to enable proceedings to be brought in respect of any violation, causes such proceedings to be taken as soon as possible, in accordance with its law. Alternatively, the flag State may request the port State to institute proceedings in line with the provisions of Article 218 UNCLOS. 95  See Nordquist (1991), p. 242. See also Article 6 MARPOL, dealing with the detection of violations and enforcement. This article provides that upon receiving evidence of a violation from another State party, the flag State administration so informed shall investigate the matter. 96  Including violations on the high seas. In practice, it will be impossible for States to spot and identify all vessels on the high seas, potentially precluding States from contacting the relevant flag State. 94

128   Part Three Furthermore, Article 217(5) UNCLOS encourages the flag State to take the initiative and to contact other States where the flag State considers this useful for the purposes of the investigation (i.e., the flag State is entitled, rather than obliged, to contact other States). According to Article 217(5) UNCLOS, Flag States conducting an investigation of the violation may request the assistance of any other State whose co-operation could be useful in clarifying the circumstances of the case. States shall endeavour to meet appropriate requests of flag States.

In any event, the flag State has an obligation to investigate reports it receives from other States that have “clear grounds to believe that proper jurisdiction and control with regard to a ship have not been exercised” and, “if appropriate, the matter and, if appropriate, take any action necessary to remedy the situation.”97 Does a flag State have a general obligation to inform other States that a pollution incident has taken place involving a ship flying its flag, irrespective of whether the incident is the subject of any further investigation and proceedings? This question will, of course, be particularly relevant where the pollution may have affected, or threatened, the interests of a coastal State. According to Article 220(3) UNCLOS, a coastal State that suspects a vessel navigating in its territorial sea or EEZ of having committed a discharge violation in its EEZ may require the vessel to provide information regarding her identity and port of registry, her last and next port of call and other relevant information necessary to establish whether a violation has occurred. The provision does not require the flag State to ensure that this information is supplied to the coastal State, since a flag State is only required to “adopt laws and regulations and take other measures so that vessels flying their flag comply with requests for information”.98 Flag States have no general obligation to inform coastal States of all specific incidents of pollution. Article 217(7) UNCLOS provides, however, that, where there has been a violation of applicable rules and standards regarding the prevention, reduction and control of marine pollution and a State has requested the flag State to investigate the violation, the flag State must inform the State requesting the investigation, as well as the competent international

 Article 94(6) UNCLOS.  Article 220(4) UNCLOS. More extensive obligations with respect to the provision of information may be undertaken by States under other treaties.

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organisation, of any enforcement action taken. Such information must be made available to all States.99 The flag State retains, however, general discretion to criminal or other proceedings in connection with discharge violations. Both UNCLOS and MARPOL provide that the flag State may take further measures where available evidence has been “sufficient” to enable the proceedings to be brought.100 There is a risk that this discretion may be misused by flag States, which may reject other States’ requests to institute proceedings by claiming, for example, that there is insufficient evidence. Given the heavy burden of proof that usually applies in criminal proceedings, however, evidentiary requirements may be difficult to meet in practice. As discussed in the next section, non-flag States may have concurrent jurisdiction to prosecute and to impose penalties for discharge violations involving foreign vessels. In some cases this jurisdiction will even outweigh that of the flag State. 6.3  Jurisdiction to Punish Foreign Perpetrators of Ship-Source Pollution 6.3.1  Overview The criminal prosecution of a perpetrator of ship-source pollution is least likely to raise issues relating to conflict of jurisdictions under international law in cases where three cumulative conditions are met: 1) the crime took place within the territory of the prosecuting State; 2) the perpetrator is a national of that State; and 3) the perpetrator is situated within the territory of that State and thus within the reach of its prosecuting authorities and courts. Such a state of affairs will, however, be exceptionally rare in the case of a pollution incident caused by a ship engaged in international trade. In most cases, the prosecuting State will not be the State of nationality of the perpetrator (i.e. the delinquent ship will be flying a foreign flag and her crew members will be foreign nationals). The pollution violation that has damaged the marine environment of a State may also have occurred outside the State’s internal waters or, as the case may be, outside its territorial sea. A State’s jurisdiction under international law is not, in principle, dependent on its ability to detain the perpetrator. However, a State will in general only assert jurisdiction in respect of crimes that are somehow linked to the

 See also Nandan and Rosenne (1995), p. 152. An equivalent obligation is set forth in Article 6(4) MARPOL, which obliges the flag State to “promptly inform the Party which has reported the alleged violation, as well as the Organization, of the action taken.” 100  Article 217(6) UNCLOS.   99

130   Part Three State (e.g., the crime was committed within the State’s territory) or that have affected its legitimate interests. UNCLOS lays down a number of provisions that help to determine whether a State has jurisdiction to institute proceedings and impose penalties for extraterritorial discharge violations. The next section examines coastal State’s jurisdiction to impose criminal sanctions for pollution committed within its internal waters, ports or territorial sea. The discussion then proceeds to analyse international rules of extraterritorial criminal jurisdiction over perpetrators of pollution. 6.3.2  Discharge Violations in Internal Waters and the Territorial Sea As examined elsewhere in this work, the territory of a State includes its inland territory, its internal waters, its ports and the belt of the sea adjacent to its coast, known as the territorial sea. Some States claim full and complete jurisdiction over all crimes committed on board foreign vessels while within their ports and internal waters, while other States only assert jurisdiction if a crime affects their interests. In practice, however, States will not interfere with an offence that is purely an internal matter for the foreign ship. While such restraint complies with the principle of international comity, it does not imply the existence of any restrictions on jurisdiction under international law.101 Article 220 “Enforcement by coastal States” of Part XII UNCLOS (dealing with the protection of the marine environment) does not address in any significant detail criminal jurisdiction with regard to pollution violations and related crimes committed by foreign vessels while within a State’s internal waters and ports. There appears to be a presumption that a coastal State’s enforcement jurisdiction over crimes committed within the limits of its internal waters corresponds, at least, to the scope of its jurisdiction over its territorial sea and includes the power to arrest the perpetrators (the State’s own and foreign nationals as well as foreign ships) and to prosecute them for pollution violations under the State’s domestic criminal law. In addition, a number of UNCLOS provisions confirm the State’s unlimited jurisdiction with regard to pollution violations committed within the baselines. Notably, Article 27(2) UNCLOS provides that the restrictions it envisages with regard to a coastal State’s criminal enforcement jurisdiction within its territorial sea do not “affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on

 It has also been well-established by legal commentators that jurisdiction over crimes committed within the baselines is complete: see, e.g., Bodansky (1991), Molenaar (1998), Churchill and Lowe (1999). See also Section 3.1 above.

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board a foreign ship passing through the territorial sea after leaving internal waters” [author’s italics]. Accordingly, UNCLOS does not envisage an express limitation on coastal States’ criminal jurisdiction with regard to crimes committed within their internal waters and ports. Nevertheless, a State will be likely to consider, although generally unofficially, whether to prosecute a foreign perpetrator for a violation committed within its internal waters or to let other States with a greater interest in the case (e.g., the flag State) take such action as they consider necessary. A discharge from a foreign ship while in the internal waters of a coastal State will probably affect that State’s interests. On the other hand, some violations of environmental regulations are less likely to have a direct impact on the coastal State’s interests, e.g., failure on board a foreign ship to comply with internal safety routines. The need to promote the objectives of international safety regulations may also be taken into account in cases where discharges or related violations are viewed by the prosecuting non-flag State as having been committed within its internal waters and thus falling under its jurisdiction. For example, the US courts have emphasized the need to “advance the aims of international treaties governing pollution on the high seas” by requiring that entries in oil record books are made accurately so that all discharges of oil are included therein.102 UNCLOS does not expressly envisage a right for the coastal State to institute criminal proceedings for non-compliance with environmental safety standards that has not yet caused pollution. The only provision addressing the authority of non-flag States to take enforcement measures vis-à-vis vessels that are unsafe and threaten the pollution is Article 219 “Measures relating to seaworthiness of vessels to avoid pollution”. This article provides, Subject to section 7, States which, upon request or on their own initiative, have ascertained that a vessel within one of their ports or at one of their off-shore terminals is in violation of applicable international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment shall, as far as practicable, take administrative measures to prevent the vessel from sailing. Such States may permit the vessel to proceed only to the nearest appropriate repair yard and, upon removal of the causes of the violation, shall permit the vessel to continue immediately.

Article 219 UNCLOS permits a State to take measures only of an administrative nature in order to prevent non-compliant vessels from sailing. The degree of non-compliance required in cases where a coastal State is permitted

 United States of America v. Ionia Management S.A., US Court of Appeals, Second Circuit, 555 F.3d 303, p. 4.

102

132   Part Three to detain a vessel is rather high, as the vessel must be so unseaworthy that it threatens “damage to the marine environment.” Still, in the light of the territorial principle of jurisdiction in general, a coastal State may assert criminal jurisdiction over a foreign vessel in its port with regard to non-compliance with environmental safety rules or standards to the extent that such noncompliance results from an act or omission that occurred within that State’s internal waters. Prior to the adoption of UNCLOS, international treaties did not expressly permit (and, in some cases, expressly prohibited) the exercise by non-flag States of criminal enforcement jurisdiction over foreign vessels sailing through their territorial waters, unless the consequences of a crime committed on board such a vessel extended to a coastal State.103 UNCLOS takes an innovative approach in expressly allowing coastal and port States to institute proceedings vis-à-vis foreign ships for unlawful pollution. It has also clarified certain issues concerning the exercise of enforcement jurisdiction in cases involving discharge violations. First, pollution violations committed within the territorial sea or EEZ of a coastal State may give rise to criminal proceedings by that State, subject to the conditions prescribed in Article 220 UNCLOS. Second, a port State may, subject to certain conditions prescribed in Article 218 UNCLOS, institute proceedings vis-à-vis a foreign vessel that enters one of its ports after having committed a pollution violation outside its maritime zones. Article 220 “Enforcement by coastal State” provides, with regard to pollution violations committed by foreign vessels within the territorial sea of the coastal State 1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State. 2. Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that State, without prejudice to the application of the relevant provisions of Part II, section 3, may undertake physical inspection of the vessel relating to the violation and may, where the

 See the Convention on the Territorial Sea and the Contiguous Zone (done at Geneva on 29 April 1958, in force on the 10th September 1964), 516 U.N.T.S. 205.

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Criminal Enforcement Jurisdiction in Ship-Source Pollution Cases   133 evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions of section 7. [author’s italics]104

With regard to pollution violations committed within its territorial sea, a coastal State is entitled to “institute proceedings”, irrespective of whether the delinquent vessel has called at one of its ports or has been detained in the territorial sea. While Article 220(2) UNCLOS does not refer expressly to criminal proceedings, it is generally understood as authorizing a coastal State to institute such proceedings in respect of discharge offences where the “evidence so warrants”, so long as the safeguards set forth in Section 7 of Part XII are complied with.105 When read in conjunction with Article 27 UNCLOS, the reference to proceedings in Article 220(2) should be interpreted as including criminal proceedings. Is a coastal State’s jurisdiction under international law to prosecute foreign perpetrators that commit pollution violations within its internal waters broader than its corresponding jurisdiction over foreign perpetrators that commit pollution violations in its territorial sea? With regard to enforcement in cases where a foreign vessel has committed a pollution violation outside the coastal State’s internal waters but within its territorial sea, Article 220 restricts the coastal State’s jurisdiction in three ways. First, Article 220(1) states that criminal enforcement measures with regard to violations which occurred within the territorial sea or EEZ of the coastal State are limited by a number of safeguards examined in more detail below. Remarkably, these safeguards have the effect that the types of penalties that may be imposed on a perpetrator will generally be more limited where the violation has occurred in the territorial sea than where the violation has taken place in the internal waters of the coastal State. Second, Article 220(2) refers to UNCLOS provisions concerning the right of innocent passage through the territorial sea, i.e., Part II, Section 3 of UNCLOS. Third, the coastal State may institute proceedings “in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels” (author’s italics).

 On this provision generally, see Nordquist (1991), p. 279 et seq.  By contrast, Article 220(1) sets forth no requirement as to evidence with respect to in-port enforcement by the coastal State, although some evidence of the violation will probably be required under the applicable domestic law of the State.

104 105

134   Part Three As discussed earlier in this work, a coastal State may generally prescribe stricter discharge standards within the limits of its territorial waters than within its EEZ. However, in so far as international rules and standards are concerned, Article 220 UNCLOS refers consistently to “applicable”—rather than “generally accepted”—rules and standards. This use of the word “applicable” seeks to limit the coastal State’s enforcement jurisdiction to the enforcement of the specific set of rules governing the relationship between it and the flag State (of the delinquent vessel), i.e., the international rules accepted by both of them.106 However, it seems logical to suggest that a coastal State would in any case be entitled to enforce such international rules as are “generally accepted”, since flag States are obliged as a minimum to implement such rules under Article 211 and Article 94 UNCLOS. Of course, with regard to its internal waters and ports, the coastal State does not have to consider whether particular standards are “applicable” in so far as the vessels of particular flag States are concerned. The UNCLOS provisions on the right of innocent passage through the territorial sea are intended to prevent coastal States from hampering such passage. In particular, they aim to prevent a coastal State from stopping vessels in transit in order to arrest individuals and conduct investigations into matters that do not concern it. Thus, Article 27 limits the criminal enforcement jurisdiction of the coastal State vis-à-vis the vessels in its territorial sea inter alia to cases where the consequences of the crime affect the coastal State. With regard to discharge violations, it refers, by virtue of Article 27(5), to the provisions of Part XII, thereby permitting the coastal State to arrest persons and conduct investigations on board the foreign ship so long as it complies with the provisions of Part XII.107 The existence of the right of innocent passage does not preclude interdiction of vessels in the territorial sea altogether but interdiction must be carried out in compliance with the provisions on the right of innocent passage. However, it is somewhat unclear whether the coastal State is entitled to prosecute and impose criminal penalties on foreign vessels for all discharge violations committed within its territorial sea, or whether it may do so only in cases involving “wilful and serious” pollution. Arguably, Article 19 UNCLOS imposes such a restriction in providing, inter alia, that a foreign vessel’s engagement in acts of wilful and serious pollution in the territorial sea will extinguish its right of innocent passage.

 Molenaar (1998), pp. 168–169.  On the relationship between Article 27 and Part XII UNCLOS see also Molenaar (1998), pp. 244 et seq., Nordquist (1991), p. 299.

106 107

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In this author’s view, such a construction of the UNCLOS provisions on innocent passage would deprive the enforcement provisions of Part XII, and Article 220 in particular, of any force with regard to investigative measures and the institution of criminal proceedings in cases involving negligent pollution violations (that are nonetheless sufficiently serious to trigger criminal liability under domestic law) by foreign vessels in the territorial sea.108 The scope of coastal State’s authority with regard to criminal prosecutions of perpetrators of pollution in its territorial sea is, however, not unlimited in the event of non-wilful and serious pollution. Thus, an express restriction is set forth in Article 230 UNCLOS with regard to the types of penalties that may be imposed on a foreign polluter for discharge violations in the territorial sea, i.e., non-monetary penalties are precluded other than for “wilful and serious” pollution. As clarified elsewhere in this Part, Article 230 does not wholly preclude the exercise of criminal enforcement jurisdiction by a coastal State with regard to the non-wilful pollution of its territorial sea, as “monetary” penalties may also be imposed by a criminal tribunal. As pointed out above, UNCLOS does not envisage any express limitations on States’ jurisdiction to take criminal enforcement measures where crimes are committed by foreign vessels within their internal waters and ports. In practice, suspicions that give rise to legitimate grounds for interdicting a foreign vessel in the territorial sea will be of no less relevance to a coastal State’s decision whether to prosecute in respect of a crime committed in its internal waters (i.e., an activity “prejudicial to the peace, good order or security of the coastal State”, under Article 19 UNCLOS, or a crime whose consequences extend to the coastal State, under Article 27 UNCLOS). But where a crime has been committed in its internal waters, the coastal State is completely free to determine what kinds of violations are of such a character that they may result in negative effects on the interests of the State, with UNCLOS merely providing some guidance in this respect. The coastal State’s jurisdiction under international law will not, in any case, be conditional on the presence of such effects or other factors justifying enforcement jurisdiction.109 An example of a State asserting its criminal jurisdiction in a shipping context with regard to an environmental violation allegedly committed within its territory can be found in United States of America v. Royal Caribbean

 See Molenaar (1998), who points out at p. 244 that Article 220 is lex specialis in relation to provisions on innocent passage. 109  In addition, the coastal State prosecuting a foreign perpetrator for pollution of its internal waters will not have to meet the requirement of the presence of the “clear grounds for believing” that violations of international rules have occurred, even if in practice such grounds will probably be present. 108

136   Part Three Cruises.110 On 1 February 1993, a patrolling US Coast Guard aircraft observed, using infrared radar, the cruise vessel Nordic Empress discharging oil. This discharge, which allegedly violated both MARPOL and the applicable US law,111 occurred in Bahamian waters while the vessel was en route to the United States. Upon the vessel’s arrival at her destination port of Miami, Florida, a Coast Guard inspection found no entry in the Oil Record Book concerning the discharge observed earlier. The shipowner was charged with violating the US False Statement Act through the knowing use or presentation of a false writing, i.e., the Oil Record Book, in order to conceal unlawful discharges at sea.112 The United States first referred the matter to the vessel’s flag State, Liberia. The Coast Guard report was presented in its entirety, including the reference to potential violations concerning the proper keeping of the Oil Record Book. On the 10 February 1994, Liberia filed its Determination that there was reasonable doubt as to whether the Nordic Empress had contravened MARPOL. The Determination also stated that given the facts presented, it was “difficult” to respond to the allegations of “improperly recorded” Oil Record Book entries. Accordingly it recommended expunging the allegation.113 In February 1998, the shipowner, Royal Caribbean Cruises Ltd (RCCL) was charged with violation of the False Statement Act. RCCL’s motion to dismiss the charge was based inter alia on the argument that the proceedings concerned a discharge violation that had occurred outside the prosecuting State’s territorial waters and were, therefore, precluded by the provisions of international law (i.e., MARPOL and UNCLOS, which required referral of the matter to the flag State).114 In other words, the defendant argued that the United States did not have jurisdiction under international law to institute criminal proceedings concerning a pollution offence that had occurred outside its territorial sea.115

 United States of America v. Royal Caribbean Cruises LTD. 11 F.Supp.2d 1358, 1998 A.M.C. 1817. 111  The Act to Prevent Pollution from Ships (APPS, 33 United States Code (U.S.C.) §§ 1905–1915) implementing provisions of MARPOL in the United States. On criminal prosecutions under the APPS see also Darmody (2003–2004). 112  Title 18 of the U.S.C., op. cit., section 1001. 113  See p. 5 of the judgment in the Royal Caribbean, op. cit. 114  Another argument was based, in particular, on Article 228 UNCLOS, by virtue of its threeyear time limit for the institution of proceedings by non-flag States. This argument turned out to be irrelevant because the Court’s ruling was based on a violation committed within US territory. 115  Since the APPS, op. cit., is applicable only within the territorial sea of the United States, it was submitted that the Act envisaged no duty to record discharges committed outside 110

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The Court determined that, although the alleged false statements had been made outside the territory of the United States, the correct approach was first to consider whether the documents containing such statements were “routinely or commonly used by the United States officials during the course of their regularly conducted activities”. If this was the case, the requirements for the application of the False Statement Act would in general be met.116 The Court found that this was the case with the oil record books on board foreign vessels calling at the US ports. Only then did the Court turn to jurisdictional issues under international law. The Court acknowledged that extraterritorial jurisdiction with regard to the violation in question (which was found to be the presentation of the false documents, rather than the actual discharge) was potentially applicable in this case by virtue of the potential effects of the extraterritorial act within US sovereign territory. The Court noted in this respect Certainly, deliberate use of false documents before the United States Coast Guard has an effect within the sovereign territory insofar as the agency’s function is compromised and the laws that agency seeks to enforce undermined.117

In the Court’s view, however, the issue of extraterritorial jurisdiction was not relevant in the circumstances of the case, because international law, including MARPOL, did not constrain a State’s powers to enforce its domestic laws with regard to violations committed in its ports. According to the Court, the “fact that international issues are implicated is not enough to divest the United States of jurisdiction”.118 The presentation of the falsified Oil Record Book was characterized as “an essentially domestic law violation over which the United States properly has jurisdiction”. Such jurisdiction is not restricted under UNCLOS.119 Consequently the Court avoided applying UNCLOS (which otherwise would have been applied as an expression of customary international law, since the convention is not ratified by the United States) in the light of the domestic nature of the prosecution, i.e., the relevant violation had been committed in the port. The Court did not, however, overlook altogether the international nature of the case and made a number of observations in this respect. In particular,

those waters. Accordingly the defendants argued that the United States had no authority to penalize discharges in Bahamian waters, even though they were unlawful. 116  The Royal Caribbean, op. cit., p. 8. 117  Ibid., p. 8. 118  Ibid., p. 15. 119  Ibid., p. 15. See also Nevada v. Hall, 440 U.S. 410, 416, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979) and others. See also Ionia Management cited in footnote 102 above.

138   Part Three it agreed with the defendant that it was necessary to respect the “careful international regulatory balance created by MARPOL”.120 In this respect, the Court noted that it was essential for port States to check the accuracy and truthfulness of the certificates and records required by international treaties such as MARPOL. Failure to do so would undermine the goals of the IMO and its member States to eliminate substandard ships and operations.121 The Court also recognized that referral of a matter to the flag State could be a more appropriate course of action in some instances. However, the Court took the view that it was up to the executive branch of government, not the courts, to make proper policy choices as to how a violation should be dealt with. The need to protect the objectives of international safety treaties was also taken into account in Ionia Management S.A. In this case the crew routinely discharged oily waste water into the high seas using equipment (a so-called “magic hose”) specifically designed to bypass the oily water separator. The oil record book was then falsified to conceal such discharges.122 The courts in both cases examined above accepted that the exercise of extraterritorial criminal jurisdiction by non-flag States was permitted under international law. However, they left open the question of the conditions and limitations imposed by international law on such jurisdiction. The extraterritorial jurisdiction of a non-flag State under international law to punish the perpetrators of pollution is examined in the following sections. 6.3.3  Discharge Violations in the EEZ Is a coastal State entitled, and if so subject to what conditions, to institute criminal proceedings if an offence committed outside its territorial sea has damaged the marine environment of the territorial sea? What about an offence committed by a foreign ship in the coastal State’s EEZ? Or an offence committed on the high seas that has damaged the marine environment of the coastal State’s EEZ? The Lotus illustrates very well the fact that prosecuting a master or crew member of a foreign vessel for a violation committed outside the prosecuting State’s territory is controversial under international law, even if the perpetrator has been taken into custody while in the State’s territory. The Court in the Lotus did not fail to point out the existence of multiple, and competing,

 The Royal Caribbean cited in footnote 110 above, p. 12.  Ibid., p. 12. 122  The charges were nonetheless brought for violation of US domestic laws in the US port, i.e., obstructing a federal investigation. 120 121

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interests arising from incidents at sea affecting non-flag States. The Court noted that The offence for which Lieutenant Demons appears to have been prosecuted was an act—of negligence or imprudence—having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz Kourt. These two elements are, legally, entirely inseparable, so much that their separation renders the offence non-existent. Neither the exclusive jurisdiction of either State, nor the limitations of the jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of these two States. It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction. [author’s italics]123

The ruling in the Lotus, however, suggests that non-flag States may, in principle, prescribe and enforce domestic criminal laws vis-à-vis foreign ships, even with regard to conduct committed outside their territorial waters. Although the flag State has principal jurisdiction over the ships flying its flag, the flag State may prove to be a forum non conveniens for the purposes of criminal litigation simply because neither the delinquent vessel nor the crew, nor other potential defendants and victims are, in practice, situated within its territory.124 The absence of a genuine link between the flag State and the ship, contrary to the requirements of Article 91 UNCLOS, could, theoretically, preclude flag State jurisdiction altogether. However, in the author’s view, the coastal State will probably not need to go as far as proving the lack of any such genuine link. Flag States tend to remain passive unless there is a serious threat to national interests (e.g., because a violation by one of a flag State’s ships has triggered measures by other States).125 In any case, where there is only a loose connection between the vessel and its flag State, the coastal State affected by the pollution may well be able to argue that it has a stronger interest in prosecuting the perpetrator.126

 The S.S. Lotus, 2 P.C.I.J. Reports 33 1935.  Strictly speaking, forum non conveniens is not a public law concept, but equivalent considerations regarding the convenience of litigation will also carry weight in criminal cases, e.g., ease (or not) of access to witnesses and other evidence for the prosecution authorities and the court, residence of victims etc. 125  This is illustrated by the prompt release cases discussed in more detail in Section 7.3 below. See also Karim (2011), who points out the practical implications of the presence or absence of national interests for the degree of flag State involvement (with regard to violations of fisheries’ regulations of the coastal State). 126  See, e.g., the Third Restatement of the Foreign Relations Law of the United States, which proposes, in para. 403(3), that in cases when “it would not be unreasonable for each of two states to exercise jurisdiction over a person or activity, but the prescriptions by the two 123 124

140   Part Three UNCLOS also protects the interests of a coastal State in situations where its interests in prosecuting the perpetrator are considerably stronger than flag State’s, most notably by precluding any right for the flag State to request the suspension of proceedings with regard to pollution violations in the territorial sea, pollution causing major damage in the coastal State’s EEZ or where the flag State has repeatedly disregarded its obligations with regard to effective enforcement.127 Accordingly, coastal or port States may refuse to surrender jurisdiction to the flag State where the relevant factors indicate that, in the circumstances of the particular case, the exercise of jurisdiction by the former would more appropriate and reasonable. The State(s) of nationality of the master and the crew will generally also have enforcement jurisdiction under international law, and UNCLOS even contains a provision (Article 97) expressly referring to such jurisdiction.128 Arguably, therefore, the assertion of jurisdiction by a State of nationality of the master or the crew to punish the discharge violation ought to supersede other non-flag States’ claims of jurisdiction. However, UNCLOS does not provide for any mechanism by which a State of nationality may request the transfer of investigation records and the suspension and transfer of proceedings from a coastal or port State, making the exercise of jurisdiction by States of nationality complicated in practice.129 In any case, the coastal State or other States affected by the pollution may also be entitled to assert jurisdiction to prosecute the perpetrator by resorting to the objective territorial or “effects” principle of jurisdiction under international law. However, the coastal State’s right to prosecute the perpetrators of pollution committed within the boundaries of its EEZ is also expressly

states are in conflict, each state has an obligation to evaluate its own as well as the other state’s interest in exercising jurisdiction, in the light of all the relevant factors. . . . a state should defer to the other state if that state’s interest is clearly greater.” 127  See Section 7.4 below. 128  See text accompanying footnote 85 above. The nationality (active personality) principle of jurisdiction is, alongside the territorial principle, well-established and generally undisputed in international law: see Section 3.4.2 above. 129  Similarly, UNCLOS does not require a port or coastal State to notify the State of nationality of all cases involving the prosecution of its nationals for pollution violations (cf. Article 27(3) UNCLOS requesting the coastal State to do so upon the master’s request and Article 231 UNCLOS requesting notification of measures to the flag State and “any other State concerned”). See, however, the provisions on the seafarer State in the IMO/ILO Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident (2006).These provisions specifically require port and coastal States to notify all seafarers’ State (or States) of nationality of seafarers’ status. They also require access to be allowed to seafarers by consular officers of the flag State.

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provided for in Article 220 UNCLOS, subject to the proviso that, as examined earlier, the coastal State’s right to interdict foreign vessels navigating in its EEZ is subject to a number of conditions and limitations. As a starting point, Article 220(3) only permits the coastal State to require the vessel to provide information regarding its identity and port of registry, its last and next port of call and other relevant information required to establish whether a violation has occurred, in cases where there are clear grounds for believing that a vessel navigating in the EEZ or territorial sea has committed a discharge violation in the EEZ. If the vessel refuses to comply with the request for information or submits false information (“if the information supplied by the vessel is manifestly at variance with the evident factual situation”) and the violation results in a substantial discharge causing or threatening significant pollution of the marine environment, the State may conduct a physical inspection of the vessel.130 Article 220 further provides 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.

Thus a coastal State is not authorized to detain, and institute proceedings against, foreign vessels that have perpetrated less-than-major pollution in the EEZ while in transit, even if the discharge also polluted that State’s territorial sea. However, Article 220 does not preclude a coastal State from having jurisdiction to prosecute all but “major” discharge violations committed in its EEZ. The opportunity to institute proceedings and, where relevant, impose criminal sanctions will arise first under Article 220(1), assuming the delinquent vessel voluntarily calls at a port of the coastal State in whose EEZ the spill occurred or, alternatively, under Article 218. The case of the Alambra illustrates that national courts will not necessarily consider themselves precluded from jurisdiction over a delinquent foreign ship that has left the EEZ without being made subject to the measures envisaged in Articles 220(3), 220(5) and 220(6), provided there is sufficient

 Article 220(5). On the interdiction of foreign vessels in the EEZ see Section 5.3 above.

130

142   Part Three evidence of the violation.131 In this case, the Greek shipping company Capri Marine Limited had been required to pay a pollution fee because one of its ships, the Alambra, had committed a discharge violation in the Swedish EEZ. Both the first instance court and the Court of Appeal upheld the imposition of the fee, and the shipowner appealed to the Supreme Court. Although dispute was over an administrative fee (vattenföroreningsavgift) rather than a penal sanction, the court considered (contrary to the prosecutor’s submission) that this was covered by the notion of “proceedings” set forth in Article 220. The Alambra had not been inspected or detained by the Swedish authorities while in the EEZ. On this basis the shipowner argued, inter alia, that Sweden did not have jurisdiction to impose a penalty because the conditions laid down in Article 220(6) had not been met. In particular, the shipowner argued, the delinquent ship had not been detained in the EEZ immediately after the violation had taken place. The shipowner submitted that proceedings could only be instituted by the coastal State if they were preceded by such measures as were described in Article 220(6) (i.e., a request for information, or, as the case may be, inspection and detention). The court admitted that, in general, a coastal State’s opportunities to institute prosecutions for conduct committed on foreign vessels in its EEZ were limited. It also noted that the provisions of UNCLOS applicable to a coastal State’s jurisdiction in its EEZ were based on a compromise between the flag State’s right to free navigation and the coastal State’s right to protect the marine environment of its EEZ. Having examined the relevant Swedish statutes and UNCLOS, the court established that the provisions of Article 220 were intended to preclude the taking of unnecessary and excessive coercive measures vis-à-vis foreign ships in transit. The court concluded that Article 220 UNCLOS did not contain an exhaustive set of rules concerning the coastal State’s jurisdiction to prosecute foreign perpetrators. Further it concluded that such jurisdiction was not dependent on the taking of the enforcement measures envisaged in the provision. Thus, in the court’s view, nothing in UNCLOS prevented the coastal State from instituting proceedings to impose penalties, irrespective of whether the vessel had left its EEZ. Actual contact between the delinquent vessel and the authorities of the coastal State was not viewed as a necessary prerequisite for

 Riksåklagaren (Chief State Prosecutor) mot Capri Marine Limited (2004), Supreme Court of Sweden, ND-2004-1. For a discussion of this case see also Mahmoudi (24 July 2005) (at  http://www.redorbit.com/news/science/184270/capri_marine_ltd_v_chief_state_ prosecutor/).

131

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the latter’s right to impose a sanction on the shipowner or operator (albeit this case concerned an administrative rather than a criminal sanction). The court also noted that even Article 228 (envisaging the right of the flag State to take over the proceedings (examined later in this work)) did not, in principle, preclude the coastal State from instituting proceedings after the delinquent vessel had left the EEZ. Accordingly the court rejected the shipowner’s appeal and upheld the imposition of the fee.132 It should also be pointed out that enforcement by the coastal State will still be limited to violations of “applicable international rules and standards”, i.e., violations of rules adopted by both the coastal State and the flag State of the vessel in question.133 Furthermore, Article 220 makes no mention of a coastal State’s jurisdiction to enforce criminal liability for a pollution violation that, despite occurring outside the State’s EEZ, has nonetheless affected the marine environment of the State’s maritime zones. As illustrated in the Lotus, the territorial principle of criminal jurisdiction may be applied broadly enough to cover a crime committed outside the prosecuting State’s territory, so long as the crime has caused effects within that State’s territory. Although the application of this principle by the Permanent Court of International Justice in the Lotus has been criticized by legal publicists, it has never been fully rejected by States. In fact, quite to the contrary.134 According to the Draft Convention on Jurisdiction with regard to Crime, territorial jurisdiction would, in principle, cover crimes committed within, and limited to, the territory of one State, as well as cross-border crimes, i.e., crimes committed in several States’ territories. Thus, the Draft Convention provides that a State has “jurisdiction with regard to any crime committed in whole or in part within its territory” and that:

 See also Mahmoudi, op. cit., who reports that the court handed down the same verdict in cases involving two analogous violations by two other tankers, first the Spirit E, owned by a Liberian-registered company, Wind Spirit Marine Company Ltd, and second by the Norwegian-flagged White Star, owned by White Star Shipping Ltd, Monaco. The judgments with regard to these two companies are unpublished. 133  See text accompanied by footnote 106 above. 134  See, e.g., Malanzcuk (1997), who points out, at p. 191, that the “wider principles [than jurisdiction with respect to collisions and other incidents of navigation—A.P.] set forth in the Lotus case, concerning the objective territorial principle, jurisdiction in general, and the nature of customary law, remain valid.” See also Ryngaert (2008) for an overview of different opinions on the validity of the Lotus judgment and on jurisdiction under international law generally. 132

144   Part Three [t]his jurisdiction extends to (a) Any participation outside its territory in a crime committed in whole or in part within its territory; and (b) Any attempt outside its territory to commit a crime in whole or in part within its territory.135

Arguably, from a coastal State’s perspective, it does not really matter whether the discharge occurred continuously while the vessel was sailing through its maritime zones, so that the violation was committed in one or more of them, or whether the resulting oil slick floated from one maritime zone (or the high seas) into the State’s (other) maritime zones. In principle, the objective territorial principle of jurisdiction also authorizes a coastal State to assert criminal jurisdiction over a pollution violation that has caused effects within its territory, even though the violation was committed outside the waters under the State’s jurisdiction. The effects (impact) principle of jurisdiction under international law is derived from the objective territorial principle and may provide a basis for a State’s jurisdiction over an act of pollution on the high seas.136 Nonetheless, there is a distinction between conduct that is committed, wholly or partly, within the territory of the prosecuting State, and conduct that only causes (or is capable of causing) effects within that State’s territory (i.e., where these effects are a consequence and not a constituent element of the unlawful conduct).137 In the latter case, the exercise of enforcement jurisdiction by the affected State would go beyond the scope of the objective territoriality principle, in that the State would be assuming jurisdiction solely on the grounds that a party’s conduct was causing “effects” within its territory. It will be necessary to examine the nature of the alleged effects more closely in order to justify the exercise of extraterritorial criminal jurisdiction over a foreign perpetrator.  Article 3 of the Draft Convention on Jurisdiction with Respect to Crime (American Society of International Law, 1935), Am. Soc.of Int.Law, Vol. 29 (1935), pp. 439–442. Thus, aiding and abetting a pollution violation could be considered either as a constituent element of the actual violation or as a closely related crime, which is nonetheless capable of being committed elsewhere than the pollution crime (e.g., at the place of business of the shipping company as opposed to the location of the ship). 136  The “effects” doctrine of jurisdiction under international law is not uncontroversial. See generally Shaw (1997), p. 483 et seq. The “effects” principle is expressly recognized in the US Restatement of Foreign Relations Law (Third) which provides, in para. 402, that a State has prescriptive jurisdiction with respect to conduct outside its territory that has or is intended to have substantial effect within its territory. For a discussion of the effects principle generally see, e.g., Shaw (1997), p. 484. See also Molenaar (1998), p. 84. See also Opinion of Advocate General Darmon in Woodpulp I examined in more detail in Section 9.3.2 below. 137  Akehurst (1972–1973), p. 153. 135

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Generally, the pollution of the marine environment of a coastal State has been recognized under Articles 218 and 220 UNCLOS as an “effect” justifying the exercise of jurisdiction (subject to certain conditions).138 A special case where a coastal State may exercise jurisdiction to take measures in respect of pollution that has occurred outside its territorial waters or EEZ is envisaged in Article 221 UNCLOS “Measures to avoid pollution arising from maritime casualties”. This provision, which applies only where there is a threat of drastic consequences for the coastal marine environment, is based on the customary international law right of self-protection (necessity).139 The provision expressly permits a coastal State to take steps to deal with pollution that is threatening its coastline despite having originated outside the State’s own waters. In author’s view, the seriousness of the threat required to trigger Article 221, however, is considerably greater than that required under the “effects” principle of jurisdiction. According to Article 221, 1. Nothing in this Part [XII, including Articles 218 and 220—A.P.] shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences. 2. For the purposes of this article, “maritime casualty” means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of damage to a vessel or cargo. [author’s italics]

In Nordquist’s view, Article 221 UNCLOS, the 1969 Intervention Convention140 and Principle 21 of the General Principles for Assessment and Control of Marine Pollution141 should be read together. Such a reading produces  See also Article 27(1)(a) UNCLOS which refers to jurisdiction in cases “where consequences of crime extend to the coastal State”, thereby endorsing, at least generally, the “effects” principle. 139  Legal commentators also point out that jurisdiction under the protective (or security) principle has been resorted to by States also in relation to acts directed against States themselves committed by anyone, anywhere, including pollution violations committed outside a State’s territory: see Molenaar (1998), p. 84, who cites the US Oil Pollution Act of 1990 and the Canadian Arctic Waters Pollution Prevention Act of 1970 as examples of the use of this principle. 140   International Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties, adopted on 29 November 1969 (entered into force May 6, 1975), 970 U.N.T.S. 211. 141  Adopted at the UN Conference on the Human Environment (1972). Principle 21 refers to accidents on the high seas that may cause “major deleterious consequences” due to pollution and that may result in “grave and imminent danger” to a coastal State’s coastline. 138

146   Part Three three conditions that must be met in order for a State legitimately to assert the right to intervene: (i) there must be a maritime incident or accident; (ii) such incident or accident must give rise to a threat of major or grave or imminent damage to the intervening State; and (iii) any remedial measures taken by the intervening State must be necessary and proportionate to the actual or threatened damage.142 The meaning of “maritime casualty” corresponds to Article II(1) of the 1969 Intervention Convention. The same term is referred to in Articles 94(7) and 211(7) UNCLOS, as well as Article 97 UNCLOS. The Commentary suggests [g]iven the provenance and the generality of the definition, no clear reason exists for limiting the meaning of the expression to the purposes of article 221. Certainly this is not required by the context. For the purposes of MARPOL 73/78, “incident” is defined in article 2, paragraph 6, of that instrument as meaning an “event involving the actual or probable discharge into the sea of a harmful substance, or effluents containing such a substance.” That meaning would be adequate for the purposes of article 221.143

The application of Article 221 is nonetheless conditional on the vessel having suffered a certain amount of damage, and not on the occurrence of pollution of the marine environment as such.144 Article 221 also does not require either the actual discharge to be substantial or the pollution to be significant in order to trigger the coastal State’s right to intervene. The pollution must only “reasonably be expected to result in major harmful consequences”. The wording of this provision is not as strict as that of Article 220 with regard to the evidentiary standards to be met by the enforcing coastal State. What kinds of measures would be permitted under Article 221? Can Article 221 be used by a coastal State to justify the prosecution of perpetrators of accidental discharge violations that occur outside its EEZ? The wording of Article 221 does not limit the measures available to a coastal State beyond its territorial sea in the same way as that of Article 220 (i.e., to requests for information and so on). Furthermore, its application is not conditional on the existence of any “clear grounds for believing” or “clear objective evidence” that a violation has occurred (although such grounds and/or evidence will probably be present in practice). Article 221 only requires the measures taken by the coastal State to be “proportionate to the actual or threatened damage”.

 Nordquist (1991), p. 307.  Ibid., p. 314. 144  Ibid., p. 313. 142 143

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In principle, the enforcement measures set forth in Section 6 of Part XII UNCLOS may be employed by States taking preventive or punitive action against foreign vessels and crews that allegedly have failed to conform to applicable national laws and regulations, or international rules and standards, intended to prevent marine pollution. From that point of view, it is immaterial whether the impugned act was performed deliberately or through carelessness or criminal negligence (although national rules and regulations may impose different penalties in these different cases), or whether the pollution originated through some act of nature without the interference of any human agency.145

Thus Articles 220 and 221 both serve essentially the same purpose: providing coastal States with a range of enforcement powers in the event of actual or threatened ship-source marine pollution. At the same time, any measures undertaken by coastal States in situations covered by Article 221 must be intended to “protect their coastline or related interests etc.”, rather than to control violations of discharge standards generally. Article 221 is concerned with the right of self-protection or self-help of a State whose coastline is affected, or likely to be affected, by marine pollution arising from a maritime casualty.146 Measures adopted by the State by virtue of necessity (which would otherwise constitute an unlawful act) must be proportionate and “the only means of safeguarding an essential interest of the State against a grave and imminent peril”. In addition (cumulatively), the measures must “not seriously impair an essential interest” of the flag State.147 The legislative history of Article 221 reveals that it was designed specifically to deal with situations in which Article 220 would be of no help because the coastal State would need to take more extreme self-protective measures than those authorized by the latter provision.148 The coastal State’s clear objective will be to prevent the occurrence of further damage to the environment, as well as to minimize the existing damage due to the casualty. This could be achieved, for example, by denying a ship involved in a maritime casualty entry into the State’s EEZ or by expelling such a ship from it.149 Post-accident enforcement measures aimed at imposing sanctions on the delinquent vessel, such as the institution of criminal proceedings and the  Ibid., p. 304.  Ibid., p. 305. 147  See, e.g., Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, pp. 40, 41, paras 51 and 52. See also the Draft Article 33(1), International Law Commission (1979). 148  As illustrated by the Torrey Canyon accident (1967) which resulted in the adoption of the 1969 Intervention Convention. 149  Molenaar (1998), p. 388. 145 146

148   Part Three detention of the vessel and the crew, fall outside the scope of Article 221. However, following the Erika accident, the municipal legal act implementing the 1969 Intervention Convention was referred to by the French Court, along with other provisions.150 Nonetheless, this author submits that international law does not deprive a coastal State of the jurisdiction to prosecute and penalize the perpetrators of discharges that, despite being committed outside the EEZ, have caused effects within the EEZ or, as a case may be, the territorial sea. Consequently, a coastal State will be permitted to exercise extraterritorial jurisdiction so long as the discharge violation has caused harmful effects within its territory. On the one hand, Article 220 attaches no significance to the place where the “effects” of a pollution violation have materialized, rather determining jurisdiction on the basis of the place where the violation was committed. In this respect, Article 220 distinguishes, in considerable detail, between the measures available to a coastal State where the violation occurred in its territorial sea and the measures available where the violation occurred in its EEZ. Article 220 (including Article 220(1), dealing with in-port enforcement by the coastal State) makes no mention at all of jurisdiction in cases where the pollution occurred outside the EEZ. On the other hand, the restrictions on the measures available to a coastal State vis-à-vis vessels involved in violations in different maritime zones relate more to its right to stop and detain such vessels in transit than to its jurisdiction to prosecute as such. Thus, a coastal State may not interdict a foreign vessel on the high seas on the grounds of operational or intentional discharge violations committed beyond the State’s territorial sea or EEZ. In cases not covered by Article 220, the coastal State will have to resort to Article 218 “Enforcement by port States”, which is examined in the following section.

 However, this was not the exclusive ground for prosecution in this case, where liability was based in any case on domestic criminal law provisions. On the Erika, see Section 9.2.4 below. In any case, Article 221 UNCLOS may have considerable practical importance for the purposes of criminal enforcement because it may allow the coastal State more easily to obtain information and evidence that may be necessary in the event of criminal proceedings against the vessel. There is nothing in the wording of Articles 220 or 221 (or of the other relevant provisions of UNCLOS, such as those in Section 7 “Safeguards”) to suggest that the results of measures undertaken under Article 221 may not be used in proceedings instituted under Article 220. Where the coastal State itself lacks jurisdiction to institute criminal proceedings against the delinquent vessel, this evidence may be useful for the purposes of flag or port State enforcement.

150

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6.3.4  Port State Jurisdiction and Extraterritorial Pollution Violations Article 218(1) UNCLOS provides, 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 organisation or general diplomatic conference. [author’s italics]

Article 218 sets forth the legal basis for a port State’s enforcement jurisdiction in matters concerning marine pollution. Under UNCLOS, the port State is granted enforcement jurisdiction in two situations: i) where the discharge violation took place outside its own waters (Article 218(1)); or ii) where the pollution violation took place in the waters of another State (Article 218(2)).151 The wording of Article 218(1) is open with regard to the scope of its territorial reach and refers to discharges committed “outside the internal waters, territorial sea and exclusive economic zone” of the port State. This has been generally understood also to cover discharge violations by foreign vessels on the high seas.152 Accordingly, the port State (i.e., the State where the delinquent vessel has called after leaving the coastal State’s waters) may render significant enforcement assistance to the coastal State in cases either where detention of the vessel by the coastal State is impossible for practical or legal reasons or where the pollution incident took place outside the coastal State’s EEZ. Moreover, Article 218 empowers a coastal State itself to act as a port State with regard to discharge violations on the high seas, in cases where the delinquent vessel subsequently enters one of the coastal State’s own ports, rather than the port of a third State.153 UNCLOS makes no mention of “criminal” proceedings to be instituted by port States.154 However, it may be inferred from other provisions of the convention that port States are, in principle, entitled to institute any type

 On Article 218 generally see Nordquist (1991), p. 258 et seq.   Where the pollution violation was committed in the waters of the port State itself, Article 220(1) applies. 153  This is confirmed by Article 218(2), which does not require the port State to await a request from a coastal or flag State in order to institute proceedings with respect to a pollution violation that “has caused or is likely to cause pollution in the internal waters, territorial sea or exclusive economic zone of the State instituting the proceedings”. 154   Although one proposal for the text of Article 218 expressly addressed criminal proceedings: see pp. 353–354 of Nordquist (1991). 151 152

150   Part Three of proceedings in respect of ship-source pollution violations, subject to the conditions listed in Article 218. Port State jurisdiction under Article 218 is conditional on the occurrence of a voluntary call by the delinquent vessel in a port of the relevant State.155 There is no explanation of the word “voluntarily” in the preparatory materials to UNCLOS. Nordquist suggests that a contrario the word would exclude cases in which the vessel entered the port or off shore installation because of force majeure or distress, or for the purpose of rendering assistance to persons, ships or aircrafts in danger or distress. [original italics]156

The reference to the voluntary nature of the vessel’s decision to enter the port would logically exclude cases where a State has used force to bring a delinquent vessel into its port. This raises the question of the consequences under international law of an unlawful seizure or arrest for the relevant State’s jurisdiction to enforce criminal penalties. In this respect, Article 232 UNCLOS “Liability of States arising from enforcement measures” provides that States shall be liable for damage or loss attributable to them arising from measures taken pursuant to section 6 when such measures are unlawful or exceed those reasonably required in the light of available information. States shall provide for recourse in their courts for actions in respect of such damage or loss.

This provision only addresses compensation for damage or loss caused by the unlawful interdiction. It does not address the legality, under international law, of the exercise of jurisdiction on the merits by the State that unlawfully seized the vessel. Some legal commentators point out that a domestic court should take account of the unlawful seizure and refrain from exercising jurisdiction in such cases (ex injuria ius non oritur).157 In practice, however, States have not always considered themselves deprived of jurisdiction  A corresponding provision is also envisaged in Article 220(1) UNCLOS on coastal State enforcement. 156  Nordquist (1991), p. 272. Molenaar (1998), pp. 186–187. 157  See Dickinson (1934), who concludes (at p. 244) that the court is “an arm of the nation” and that if there “was no jurisdiction in the nation to make the original seizure or arrest, there should be no jurisdiction in the court to subject to the nation’s law”. See also Article 16 “Apprehension in Violation of International Law” of the Draft Convention on Jurisdiction with Respect to Crime (American Society of International Law, 1935), which says that “no State shall prosecute or punish any person who has been brought within its territory . . . by recourse to measures in violation of international law or international convention without first obtaining the consent of the State or States whose rights have been violated by such measures.” 155

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to punish unlawfully seized persons simply by virtue of the unlawful nature of the arrest (male captus, bene detentus).158 Moreover, the accused individuals or companies will generally not be able to rely directly on a violation of international law, and of UNCLOS in particular, in the course of domestic proceedings.159 As follows from the wording of Article 218(1) (“may undertake”), a port State’s enforcement jurisdiction is discretionary, both with regard to investigating the violation and to instituting criminal proceedings, “notwithstanding earlier attempts to make it more categoric”.160 Although, by virtue of Article 218(1), the port State is free to decide whether to institute proceedings, Article 218(3) encourages the port State to comply with requests from any State affected by the discharge or from the flag State to investigate the pollution incident “as far as practicable”. Regional port State control agreements attempt to reinforce the duty of port States to inspect foreign vessels.161 The jurisdiction of port States under Article 218(1) is limited to “applicable international rules and standards”. This precludes the enforcement of any domestic discharge requirements not giving effect to such international standards.162 Article 218(1) expressly provides that proceedings instituted by a port State may relate only to discharge violations committed outside its maritime zones, thereby excluding violations of CDEM standards and

 E.g., in US v. Williams 617 F.2d 1063, 1090 (5th Cir.1980) the US court held that the United States retains jurisdiction over persons arrested on a foreign ship beyond the US navigable waters when the arrest violates a treaty between the United States and the foreign State). See also Royal Caribbean, cited in footnote 110 above, p. 16, where the US District Court accepted that a violation of international law would not affect the legality or constitutionality of the Coast Guard’s action (although the result might be different in the case of a self-executing treaty). See also Chentman (2011), pp. 168 et seq. who points out that jurisdiction under international law will in such cases remain unaffected. 159  Although in monistic or mixed legal systems this may still be possible if the treaty is considered self-executing (see also footnote 198 below). Practice shows that courts (even in dualistic systems) will generally attempt to consult provisions of international treaties when interpreting domestic rules: see, e.g., Alambra, cited in footnote 131 above, where the Supreme Court of Sweden interpreted domestic statutes in the light of UNCLOS. Individuals may also be able to rely on the rights envisaged in human rights instruments. Thus the ECtHR confirmed that the principle of ex injuria jus non oritur principle is protected by the European Convention on Human Rights: see the judgment in the Medvedyev case, cited in footnote 47 above, pp. 11–12, where the European Court of Human Rights said that “legitimate as it may be, the end does not justify the use of no matter what means.” 160  Nordquist (1991), p. 271. 161   On port State control agreements, such as the Paris Memorandum of Understanding see, e.g., Özçayir (2004) p. 121 et seq. 162   Nordquist (1991), p. 272. See also Molenaar (1998), p. 105. 158

152   Part Three navigational rules.163 However, it is unclear whether port States may enforce international rules and standards that, while applying as between the flag State and the affected coastal State, have not been adopted by the port State. Some legal commentators, including this author, suggest that port States may not enforce such rules, at least where such rules are not “generally applicable”.164 In the case of proceedings instituted under Article 218 by another State, the coastal State retains its jurisdiction under international law to impose criminal penalties on the polluter. Thus, by virtue of Article 218(4), the port State is required to transmit the records of its investigation to the coastal State and to suspend its proceedings at the request of the coastal State where the violation occurred within the coastal State’s internal waters, territorial sea or EEZ (but not on the high seas). Furthermore, in the event of such a suspension, Article 218(4) requires the port State to transmit the evidence and records of the case, together with any bond or other financial security posted with the authorities of the port State, to the coastal State. Such transmittal shall preclude the continuation of proceedings in the port State. Article 218 does not affect, in principle, the primacy of the flag State’s enforcement jurisdiction.165 Thus the coastal State may be precluded from exercising jurisdiction if the flag State decides to do so. The flag State is entitled under Article 218 to request the port State to investigate the violation, institute proceedings and transmit the records of the investigation to the flag State. Article 218(4) should be read together with Articles 223 to 233 of Section 7, which impose various safeguards in connection with proceedings instituted pursuant to Part XII UNCLOS.166 So far the discussion has focused on criminal jurisdiction with regard to foreign vessels and perpetrators of pollution that have damaged the marine environment of a State or States. A related question is whether international law grants a non-flag State jurisdiction to conduct an investigation and to prosecute a foreign polluter where an unlawful violation does not cause actual damage to any State, including the State exercising jurisdiction (e.g., because the pollution occurred on the high seas far away from the coast). The need for such jurisdiction arises, in particular, due to poor enforcement by flag States.

 See also Molenaar (1998), p. 105. This does not, however, deprive the port State of the power to detain a vessel whose technical condition does not comply with safety standards established by MARPOL and other relevant international instruments (Article 219 UNCLOS). 164  See Molenaar (1998), p. 171, Bodansky (1991), p. 762. 165  Nordquist (1991), p. 271. 166  Ibid., p. 272. See Section 7.4 below on the flag State’s right to take over proceedings. 163

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In principle, Article 218(1) UNCLOS grants jurisdiction to port States to enforce discharge standards and to impose sanctions for conduct committed outside the maritime zones of both the port State and also other States, i.e. on the high seas.167 Does international law, including UNCLOS, confer jurisdiction on a port State to prosecute the perpetrator of a pollution crime committed on the high seas merely by virtue of the fact that the delinquent foreign vessel has made a voluntary call at one of its ports? In this situation, Article 218 circumscribes the port State’s jurisdiction in two ways, with the result that port States are precluded from exercising extraterritorial enforcement jurisdiction over all discharges, regardless of where they are committed. First, Article 218(1) does not deprive a flag State of the right to take over proceedings brought under Article 218 (or under the other provisions of UNCLOS). However, failure by the flag State to comply with the time bar envisaged in Article 228(1) may deprive the flag State of the opportunity to exercise jurisdiction. Second, port State jurisdiction over pollution violations committed in the maritime zones of other (coastal) States is conditional upon the receipt of a request either from the coastal State in whose waters the violation took place or from the flag State, unless the port State itself is affected by the violation.168 There is nothing, however, in the wording of Article 218 to preclude a port State from instituting proceedings with regard to pollution violations committed outside other States’ maritime zones (no request from the coastal State is necessary in such a case), even though no express reference to pollution on the high seas is included in the provision. Moreover, the effective exercise of jurisdiction by a port State over perpetrators of pollution on the high seas would be especially useful with regard to vessels flying the flags of States with a poor enforcement record. From the perspective of international law, there is still a problem concerning the criminal prosecution by a port State of a pollution violation committed on the high seas that has not directly, or even indirectly, affected any State, including the port State. Although the findings of the PCIJ in the Lotus  See, e.g., Bodansky (1991), Nordquist (1991), Molenaar (1998).   Article 218(2) UNCLOS. In this respect, port State jurisdiction can be defined as “representation jurisdiction”, i.e., the decision to prosecute the perpetrator of pollution in a particular foreign State’s waters is not taken in isolation by the port State (as would be the case with universal jurisdiction), but requires a certain level of involvement by the foreign State (which is more directly concerned). On the principle of “representation”, see also the Council of Europe (1990), p. 14.

167 168

154   Part Three suggest that the exercise of extraterritorial jurisdiction would be lawful in the absence of a prohibitive rule of international law, States have not generally accepted such a liberal approach. On the contrary, States’ discretion has been subjected to certain restrictions under international law. In Barcelona Traction, the International Court of Justice noted [international law] does postulate the existence of limits—though in any given case it may be for the tribunal to indicate what these are for the purposes of that case; and . . . involve for every State an obligation to exercise moderation and restraint as to the extent of the jurisdiction assumed by its courts in cases having a foreign element, and to avoid undue encroachment on a jurisdiction more properly appertaining to, or more appropriately exercisable by, another State. [author’s italics]169

Arguably, the exercise by a port State of jurisdiction to prosecute the perpetrators of a discharge violation on the high seas may still be justified by the “effects” doctrine, even if the port State itself has suffered no damage. Enforcement measures in such a case would be a response to “the international community’s desire to supplement traditional (flag State) enforcement jurisdiction over activities (pollution discharges) that could have detrimental effects over the community’s shared area”.170 Akehurst warns that “[o]nce we abandon the ‘constituent element’ approach in favour of the ‘effects’ approach, we embark on a slippery slope which leads away from the territorial principle towards universal jurisdiction.”171 The justification for port State enforcement in the above-mentioned scenarios will resemble even more closely a principle of universal jurisdiction, as even “effects” will not be required to justify the prosecution of a foreign perpetrator for a pollution violation on the high seas. In principle, a State may assert universal jurisdiction to prosecute persons (including foreign nationals) for certain offences recognized by the world community as being of universal concern. In such circumstances, the prosecuting State does not need a traditional nexus with either the crime, the alleged offender, or the victim. By virtue of a port State’s authority under Article 218 UNCLOS to take measures in respect of discharge violations committed in waters outside its own jurisdiction, a port State may be said to

 See the International Court of Justice, Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February 1970, 9 I.L.M. 227 [1970], p. 287. 170   McDorman (1997), p. 318. Molenaar (1998), p. 106. 171   Akehurst (1972–1973), p. 153. 169

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possess a kind of quasi-universal jurisdiction over violations of international discharge standards.172 Piracy is an example of a maritime crime that is generally recognized as being subject to universal jurisdiction.173 Universal jurisdiction over the perpetrators of ship-source pollution might offer a theoretical solution to the problem of insufficient and ineffective flag State enforcement. However, as a matter of de lege lata, pollution of the marine environment is not generally considered to fall under the universal principle of jurisdiction in its proper meaning, although it may become more firmly established as an international crime of universal concern in the future.174 6.3.5  Allocation of Concurrent Jurisdiction to Prosecute a Discharge Violation Affecting Several Coastal States A complex situation would arise in a scenario where several coastal States, having been affected by a discharge violation involving the same vessel, all asserted jurisdiction to punish the perpetrator. For example, the vessel might have committed a pollution crime while sailing through the maritime zones of several States, with the result that the violation could not strictly be limited to a single State’s territorial sea or EEZ for the purposes of Article 220. Alternatively, the vessel might have committed several distinct, but related, violations, either wholly within different States’ waters or partly on the high seas. In the latter scenario, one or more discharge violations might be linked to offences concerning the obstruction of justice (e.g., falsification of oil record books and/or misrepresentations to coastal authorities).175 In cases where a pollution crime can be said to have been committed within the territory of more than one State, each of the States in question may, in principle, assert its exclusive jurisdiction to prosecute the offender on the basis of its territorial sovereignty. However, a prosecuting State that disregards another State’s concurrent jurisdiction risks trespassing on that State’s sovereignty, possibly in violation of international law. In practice, the first State to detain the delinquent vessel will likely be best positioned to proceed with the investigation of the pollution incident and the imposition of penalties. However, this will not be the only (or at least

 See Ringbom (2008), p. 214. See also Molenaar (1998), p. 106, on universal jurisdiction in ship-source pollution, who points out that it is “incorrect to speak of universal jurisdiction [in this context] without appropriate qualifications.” On universal jurisdiction generally, see, e.g., Randall (1988). 173  See Article 105 UNCLOS. 174  See also Section 3.4.3 above. 175   Such as in the Royal Caribbean, cited in footnote 110 above. 172

156   Part Three not the main) factor for determining how jurisdiction should be allocated in any given case.176 Generally, jurisdiction should be granted to one of the States by identifying and balancing all the legitimate interests of each of the States in prosecuting the perpetrator. In principle, a State should refrain from exercising jurisdiction where, in the light of all relevant factors and circumstances, another State’s interests in prosecuting the case is greater and it would, therefore, be more reasonable for that State to exercise criminal jurisdiction.177 An examination of such interests, which may be based on territorial and (or) personal (e.g., nationality) factors, will help determine which State has the principal interest in imposing sanctions in a particular case.178 In practice, States of nationality of crew seldom (if ever) undertake prosecutions for pollution violations committed abroad. However, in some situations the nationality principle could be taken into account together with some other principle of jurisdiction, e.g., objective territoriality or effects-based jurisdiction. For example, a coastal State affected by the pollution may turn out to be the State where the shipowner is resident or from where the crew has been hired (with the flag State merely serving as a flag of convenience). In such a case, the nationality link will apparently serve as an additional factor for granting jurisdiction to prosecute to the affected (coastal ) State. An example of a situation where it was necessary to decide which of two coastal States (each badly affected by the pollution incident) should be granted jurisdiction to prosecute the perpetrator flying the flag of a third State arose following the sinking of the Prestige. The Prestige was a 26-yearold single-hulled oil tanker that ruptured its hull and sank off the coast of Spain (in the Spanish EEZ) in 2002. The resulting oil spill caused serious damage to the coastal marine environments of both France and Spain (as well as other States such as Portugal). The affected States suffered serious economic losses as a result.179 As both France and Spain claimed to have a major stake in the incident (also with regard to civil liability) and both were willing to prosecute, the issue of allocating jurisdiction arose. The issue was dealt with by Eurojust, as

 See also Shaw (1997), who points out at p. 459 that even though the State where the offender is situated may in fact exercise jurisdiction, both States (i.e., the State where the crime was committed and the State where the damage occurred) may validly try the offender. 177  See para. 403(1) of the US Restatement of Foreign Relations Law (Third), supplemented in para. 403(2) by a list of factors that may indicate possible “unreasonableness” of jurisdiction. 178  Ryngaert (2008), p. 22. 179  For a more detailed description of the Prestige accident and the related litigation see, e.g., Michinel (2007). 176

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desired by the competent authorities of the States involved. Although Eurojust considered the conduct of two investigations useful in order to identify both the real victims and also the extent of damage in both countries, it found that a single trial would provide for more efficient sentencing and would be more in the interests of the victims.180 Following its analysis, Eurojust concluded that Spain was better suited to prosecute than France. The main factors in Eurojust’s decision were as follows: first, more evidence had been gathered in Spain due to direct contact from the start of the investigation between the Spanish authorities and the ship and crew; and second, more injured parties were situated in Spain than in France, with some of the French victims already having joined the judicial procedure in Spain. Thus, the Eurojust decision took pragmatic account of procedural considerations when balancing the Spanish and French interests in adjudicating the case. Emphasis was placed on factors such as the convenience of litigation (e.g., the location of evidence and witnesses), the State primarily responsible for conducting the investigation, and the State where the majority of the evidence had been gathered.181 In the light of such considerations, the flag State (the Bahamas), which was a flag of convenience, would have been very unlikely to have represented the most appropriate forum for adjudicating the case.182 As discussed in the following chapter, Section 7 “Safeguards” UNCLOS provides for opportunities for non-flag States to institute criminal proceedings in respect of a pollution violation in cases where the flag State has failed to take corresponding measures and punish the perpetrator of pollution. At the same time, Section 7 imposes additional restrictions on port and coastal States with regard to the exercise of criminal enforcement jurisdiction over foreign vessels and crews.

 Eurojust’s decision on the Prestige case (Case Nr. 27/FR/2003), The Hague, 23 November 2005. On Eurojust in more detail see, e.g., Suominen (2008). 181  Article 223 UNCLOS in Section 7 “Safeguards” expressly requires (non-flag) States to “take measures to facilitate the hearing of witnesses and the admission of evidence submitted by authorities of another State, or by the competent international organization”, and to “facilitate the attendance at such proceedings of official representatives of the competent international organization, the flag State and any State affected by pollution arising out of any violation.” See also Abelson (2010) at p. 14, who points out (in the context of US laws on extradition) that a “key consideration in weighing concurrent efforts to prosecute should be the relative convenience for both the prosecution and defendant of litigating” in a particular country, including the location of evidence and witnesses, as well as existence of mutual legal assistance treaty. 182  The flag State did not assert jurisdiction in this case, to the best of the author’s knowledge. 180

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7  Safeguards Against Excessive Enforcement by Non-Flag States 7.1  Introduction In addition to provisions regulating the powers of port and coastal States over foreign vessels in the maritime zones under their jurisdiction, Part XII UNCLOS contains Section 7 “Safeguards”. This section sets forth a range of provisions designed to preclude the excessive use of enforcement jurisdiction by non-flag States. Some of the provisions codify customary rules of international law, e.g., by prohibiting the excessive use of power and by regulating State responsibility for violations of international law.183 According to Article 225 UNCLOS, In the exercise under this Convention of their powers of enforcement against foreign vessels, States shall not endanger safety of navigation or otherwise create any hazard to a vessel, or bring it to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk.

In addition, Article 227 UNCLOS prohibits States from discriminating against any vessels, “in form or fact”, when exercising rights and performing duties under Part XII.184 States also have a duty to avoid adverse consequences arising from the exercise of their powers of enforcement. Under Article 232 UNCLOS, States that adopt excessive enforcement measures for pollution violations by foreign vessels or that disregard the safeguards applicable to foreign vessels and crews may be liable for any damage or losses that result. Article 232 renders the State liable for “damage or loss attributable to [the State] arising from measures taken pursuant to section 6 when such measures are unlawful or exceed those reasonably required in the light of available information.” The provision also requires States to provide for recourse in their courts for actions in respect of such damage or loss. Where a State fails to do so, it may be subject to dispute settlement proceedings under Part XV UNCLOS.185 Some of the safeguards discussed in more detail in this chapter regulate port and coastal States’ powers to conduct investigations on board foreign ships and to detain foreign vessels and crews suspected of pollution violations,  See Articles 224, 225 and 232 UNCLOS.  Equivalent provisions are set forth with respect to vessels exercising the right of innocent passage: see Articles 25, 26 and 52 UNCLOS. 185  See, e.g., M/V Saiga (No. 2) (St. Vincent v. Guinea), 120 I.L.R. 143 (Int’l. Trib. L. of the Sea 1999), and, in particular, para. 153 et seq., where the International Tribunal for the Law of the Sea (ITLOS) considered the question and agreed that there had been excessive use of force by Guinea. See also on reparation through damages in para. 167 et seq. of the judgment. 183 184

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as well as prompt release procedures. Other provisions discussed here related to the suspension of proceedings and the taking over of proceedings by the flag State. Finally this chapter discusses certain restrictions imposed by UNCLOS on the penalties applied for pollution violations committed by foreign vessels. Section 7 of Part XII obliges the coastal or port State to inform the flag State or “any other State concerned” of enforcement measures undertaken under Articles 218 or 220 (or under other provisions of Section 6) and to submit to the flag State all official reports concerning such measures.186 The flag State’s diplomatic agents or consular officers, and where possible its maritime authority, must be immediately informed of any measures taken pursuant to Section 6 against its vessels.187 A special exception to the rules regulating a State’s jurisdiction over foreign vessels stems from the rules of customary law on sovereign immunity. Both UNCLOS and the IMO safety conventions take account of sovereign immunity by virtue of provisions excepting from their scope ships operated by foreign governments (unless for commercial purposes) and foreign warships.188 Owing to the immunity such ships enjoy under customary international law, they are not subject to the coastal State’s enforcement jurisdiction.189 They are, however, subject to the coastal State’s legislative jurisdiction.190

 Article 231 UNCLOS does not explain what other States may be concerned with the proceedings. Such States may be the other coastal States affected by the pollution or, as the case may be, the State of nationality of the master and the crew. A coastal State’s obligation to submit official reports to the flag State, and to inform the flag State of other enforcement measures, is narrower in cases of pollution in the territorial sea. In such cases, the coastal State’s obligations are limited to reporting “such measures as are taken in proceedings” (according to the second sentence of Article 231). 187  See also Molenaar (1998), Nordquist (1991). 188  Convention on the Territorial Sea and the Contiguous Zone (done at Geneva on 29 April 1958, in force on the 10th September 1964), 516 U.N.T.S. 205, Art. 21; UNCLOS Part II, Sec 3B; MARPOL, Article 3(3). See also Article 16 of the UN Convention on Jurisdictional Immunities of States and Their Property (adopted on 2 December 2004, not yet in force). See also International convention for the unification of certain rules concerning the immunity of state-owned ships of 1926 and additional protocol of 1934, 176 League of Nations Treaty Series (LNTS) 201. 189  The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, op. cit., Art. 22; UNCLOS Art. 32. More on sovereign immunity from jurisdiction under international law see, e.g., Malanczuk (1997), p. 119 et seq. 190  Churchill and Lowe (1999), p. 99. Flag States must nevertheless ensure that such ships act in a manner consistent with MARPOL “so far as is reasonable and practical” (Article 3(3) MARPOL). 186

160   Part Three Generally, immunity is granted for a State’s governmental acts (acts iure imperii), but not for a State’s commercial acts (acts iure gestionis).191 The alternative, but closely related, doctrine of “act of State” precludes the exercise of jurisdiction by a foreign court over an act of State carried out within its territory.192 This doctrine might apply, for example, if a person were sued or prosecuted in the courts of one State for acts performed by him as a servant or agent of another State. Thus, “all servants or agents (or former servants) of a foreign state are immune from legal proceedings in respect of acts done by them on behalf of the foreign state”.193 The fact that these two principles do not fully protect persons who perform State functions in the shipping sector from criminal prosecution in foreign jurisdictions is quite apparent from the example of the master of a merchant ship. Although the master traditionally performs a variety of public functions on board during an international voyage (e.g., investigating crimes, registering civil acts etc.),194 this public role has not precluded coastal States from prosecuting the masters of merchant ships for pollution violations under UNCLOS. The distinction between governmental and commercial acts is not always clear, as is the case where a public function, such as a safety inspection, is performed by (delegated to) a commercial actor such as a classification society. Thus, in the Erika trial before the Court of First Instance (in France), the classification society was charged with endangerment due to imprudence in performing a technical inspection of the tanker, thereby exposing the crew to an immediate risk of death by “shipwreck or drowning”.195 The classification society invoked the defence of sovereign immunity (i.e., Malta’s immunity as a flag State of which the society claimed itself to be a “delegate through the issuance of statutory and safety certificates”)

 See Malanczuk (1997), at p. 119, who discusses the doctrine of sovereign immunity in State practice and points out that nowadays a doctrine of qualified immunity excluding commercial acts is more accepted. This position is also confirmed in the respective treaties cited above. 192  Although the “act of state” doctrine is closely related to the doctrine of sovereign immunity, it is less clear whether it has a basis in a rule of customary law. See, e.g., Malanczuk (1997), at p. 22. See also Article 11 of the Draft Convention on Jurisdiction with Respect to Crime, American Society of International Law, 1935), Am. Soc.of Int.Law, Vol. 29 (1935), pp. 439–442. 193  Malanczuk (1997), p. 22. 194  On the master’s status generally see Cartner, Fiske and Leiter (2009). 195  The judgment of 16 January 2008 of the Court of First Instance (Paris), 11th Chamber. p. 228. An unofficial English translation of the judgment is on file with the author. On the Erika case see also Section 9.2.4 below. 191

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with regard to its renewal of the tanker’s certificates, despite her structural condition being so poor as to cause her to break apart and sink in heavy seas, causing a major oil spill.196 The Court rejected the application of immunity in this case and explained that [t]he existence of a textual or factual link between certification and classification, the relations of the State of Malta with the various classification societies and the practice followed by that State in the granting of its flag, or further still “the objective of public service” . . . that would be pursued during the classification activity do not have the purpose or effect of linking it to the exercise of sovereignty of the States whose flag is flown on the ships classed by the RINA society [. . .].197

Any objections to enforcement measures by virtue of State immunity may be raised directly in the municipal court hearing the case. By contrast, the UNCLOS safeguard provisions (and the treaty in general ) may not be relied upon directly by private individuals, such as a shipowner or crew member. In general, only States have locus standi under international treaties, because treaty rights accrue to sovereign nations rather than to private individuals.198 This consideration is reflected, in particular, in the UNCLOS rules on the prompt release of vessels (discussed later in this chapter). At the same time, a flag State shall extend its protection not only to the vessel itself but also to all persons working on board the ship, irrespective of their nationality. Accordingly the flag State may rely on the UNCLOS provisions and inter alia claim compensation for unjustified measures by non-flag States also with regard to any such (natural or legal) persons involved with the activities of the ship.199

 Erika, op. cit., page 214 of the judgment.  Ibid., p. 214. 198  Some international treaties or individual provisions thereof may be directly applicable, i.e., “self-executing” treaties which do not need implementation into municipal law (although this is not the case in dualistic legal systems where transposition into national law will generally be required). See more in Malanczuk (1997), p. 64 et seq. See also Molenaar (1998), p. 489. See also the US District Court’s findings in the United States of America v. Royal Caribbean Cruises LTD. 11 F.Supp.2d 1358, 1998 A.M.C. 1817, at p. 16. 199  See the judgment in the Saiga (No. 2), cited in footnote 185 above, paras 105 and 106, where the ITLOS points out that the flag State’s obligations under Articles 94 and 217 UNCLOS can be discharged only through the exercise of appropriate jurisdiction and control over natural and judicial persons such as the master and the other members of the crew, the owners or operators and other persons involved in the activities of the ship. The provisions do not make any distinction between nationals and non-nationals of a flag State. 196 197

162   Part Three 7.2  Rules Applying to the Investigation and Detention of Foreign Vessels As examined earlier in this Part, UNCLOS imposes certain restrictions on coastal States’ powers to stop and detain foreign vessels in transit. Even if a coastal State has enforcement jurisdiction over a foreign delinquent vessel that is navigating its coastal waters, UNCLOS limits the situations in which the State may stop and physically inspect such a vessel. Generally, a coastal State is always entitled to request information from a vessel navigating in its territorial sea.200 But a physical inspection of a vessel may be conducted only if there are clear grounds for doing so or if the documents supplied are not sufficient to confirm or verify a suspected violation. Article 226(1)(a) specifies alternative grounds for carrying out a physical inspection: (i) there are clear grounds for believing that the condition of the vessel or its equipment does not correspond substantially with the particulars of those documents; (ii) the contents of such documents are not sufficient to confirm or verify a suspected violation; or (iii) the vessel is not carrying valid certificates and records.201 Is Article 226(1)(a) only concerned with CDEM standards (i.e., not discharges), since it refers to the “condition of the vessel or its equipment”? The answer is probably no, as MARPOL also provides for other obligations, e.g., requirements for the keeping of oil records. Failure to record discharges, or falsification of the oil record book, may be revealed by an inspection of the vessel’s documents. If a discharge has been observed and can be linked to the ship through aerial surveillance, it will usually be necessary to take samples.202 Article 226(1) (a)(i), however, does not specify the meaning of “clear grounds”.203 Molenaar suggests that the negotiators at UNCLOS III left this requirement open for elaboration in the regulatory conventions.204 According to Molenaar,

 At least Article 220(3), which grants the coastal State more limited enforcement powers than Article 220(2), entitles the State to ask the vessel for information about its identity/ port of registry, its last and next port of call and other relevant information required to establish whether a violation has occurred. See also Molenaar (1998), p. 246. 201  Article 226(1)(a) UNCLOS. 202  The evidentiary requirements in criminal pollution cases vary considerably from State to State. 203  See also Section 5.3 above on the meaning of “clear grounds” in the context of Article 220 and, in particular, the understanding adopted in port State control procedures. 204  Molenaar (1998), p. 461. 200

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“[e]vidence originating from notifications or aerial surveillance would seem to constitute sufficient ‘clear grounds’ to justify physical inspection.”205 Even where there do not seem to be sufficient grounds for further inspection under Article 226(1)(i), Article 226(1)(ii) provides an opportunity to conduct a further check to investigate whether or not a discharge violation has taken place. Article 226(2) further provides that States shall co-operate to develop procedures for the avoidance of unnecessary physical inspections of vessels at sea. Once an inspection has revealed a “violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment”, logically the coastal authorities’ next step will be to detain the vessel and her crew before considering the institution of proceedings to impose penalties. UNCLOS does not define detention for the purposes of criminal proceedings within the meaning of Articles 218 and 220. Earlier versions of the provision referred to “arrest”, which has subsequently been replaced by “detention”.206 Detention for the purposes of Article 220 “implies a temporary stop to the vessel’s further navigation, pending the outcome of the proceedings.”207 Detention pending the outcome of proceedings is different from the mere stopping and control of the vessel in transit with a view to checking its compliance with discharge standards, as envisaged in Article 220 and elsewhere in Part XII UNCLOS. The latter measure, which is likely to be limited to the inspection of documents, will take much less time (unless, of course, the inspection produces “clear grounds” for believing that a violation has taken place, as this may well result in the detention of the vessel and the crew). Detention pre-supposes not only a lengthier stop than a mere inspection in transit, but also involves more intrusive and far-reaching measures than an examination of the vessel’s certificates. Although UNCLOS permits the detention of foreign vessels and crews on suspicion of pollution violations, the treaty also makes it clear that detention is an exceptional situation, involving a serious restriction on the freedom of navigation, and must be as brief as possible. Detention will also have inevitable consequences for the vessel’s master and her crew, as such persons may be detained to ensure that they do not obstruct the course of justice by fleeing or destroying evidence etc. Since the  Ibid., p. 246.  Nordquist (1991), p. 295. Note that during the UNCLOS III negotiations, Liberia requested the use of a substitute term for the word “arrest”, due to the association of the latter word with criminal procedure. 207  Nordquist (1991), p. 300. 205 206

164   Part Three investigation of a pollution incident will normally include questioning and other procedural activities involving the master and other members of the crew, their availability may be essential at least during some stages of the investigation and, eventually, at trial. Accordingly, the detention of a foreign vessel and crew in relation to a suspected discharge violation may be considered necessary and proportional in order to protect the State’s interest in enforcing its criminal laws on pollution and related violations.208 At the same time, pre-trial detention in the form of imprisonment is not the only means of ensuring that a suspect does not escape justice. Other possible measures could include a ban on repatriation, the posting of monetary security etc.209 Imprisonment will generally only be applied in serious cases where there is a real risk of a flight from justice. Although the alternative measures will amount to a restriction on personal freedom, it is unclear whether they are included in the definition of “detention” set forth in UNCLOS. Accordingly, the interpretation by domestic law enforcers of the concepts of “detention” and “release”, as envisaged in Articles 220 and 226 UNCLOS, is important because of the legal implications for the detained person of detention within the meaning of these provisions, i.e., an opportunity to obtain flag State protection in the form of prompt release. The IMO Guidelines on Fair Treatment of Seafarers define a detention as “any restriction on the movement of seafarers by public authorities, imposed as a result of a maritime accident, including preventing them leaving the territory of a State other than the seafarer’s country of nationality or residence.”210 Accordingly, the Guidelines take a broad view of detention for the purposes of enforcement under Part XII. UNCLOS refers to the “vessel” and not to the “shipping company” or the “shipowner” (or any other entities) that may be involved with criminal proceedings relating to the pollution violation. Does UNCLOS permit coercive measures to be applied to others than the vessel, the master and the crew? For example, does UNCLOS, or international law generally, allow a State to arrest other assets of the shipowner than the ship? Or to detain other persons than members of the crew?  A perpetrator of pollution does not have to be taken into custody in order for the State to have jurisdiction to prosecute (see, e.g., Alambra, footnote 131 above). Nonetheless, a coastal State that has detained a delinquent vessel and the crew will probably be in a stronger position than any other coastal State to assert criminal jurisdiction with respect to the pollution violation. 209  Foreign crew are commonly made subject to orders that prohibit repatriation, require confiscation of passports and/or oblige crew members to report regularly at a police station. 210  IMO/ILO Guidelines on Fair Treatment of Seafarers in the event of a maritime accident (27 April 2006), para. 8. See also Section 7.5 below on the rights of the crew in ship-source pollution cases. 208

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Insofar as the arrest of other persons than the crew is concerned, Nord­ quist’s commentary suggests that “Part XII does not authorise the arrest of any person; at most it permits the detention of the crew along with the vessel, but with prompt release subject to ‘reasonable procedures such as bonding or other financial security’”.211 The wording of Article 220 UNCLOS (“detention of the vessel”) prevents the coastal State from detaining a sister ship (e.g., where the delinquent vessel has escaped detention) as security in the course of criminal proceedings in pollution cases. However, UNCLOS does not regulate a State’s right to arrest other assets belonging to the shipowner in the course of such proceedings. Generally, however, this option will only be available to the coastal State if such assets are situated within its territory. At the same time, as discussed in the next section, the International Tribunal for the Law of the Sea (ITLOS) tends to interpret the meaning of security rather broadly. Accordingly, the security to be deposited by the flag State in order for the vessel to be released may include not only (the value of ) the vessel itself, but also assets associated with the vessel. 7.3  Prompt Release of Vessels and Crews A vessel that has been detained under Article 220 UNCLOS may be released subject to the prompt release provisions of the convention. Thus, Article 226(1)(b) provides that “release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security”. The provisions of Article 226 should be read in conjunction with Article 292 UNCLOS, which regulates the procedure to be followed in cases where the detaining State refuses to release the vessel in contravention of UNCLOS. Article 292 appears within Section 2 “Compulsory procedures entailing binding decisions” of Part XV “Settlement of disputes” and deals with the prompt release of vessels and crews. The article is designed to address situations where the detaining State refuses to release the vessel and crew despite the posting of an appropriate bond.212 The article provides that an application for release may only be submitted by or on behalf of the flag State.213 Article 292 does not impose an unconditional obligation on the detaining State to release the vessel and the crew. First, such a release shall be made  Nordquist (1991), p. 342. Article 226 does not refer expressly to the crew and only mentions that the “vessel” shall be promptly released. However, the wording of other provisions in UNCLOS implies that the crew is covered by the prompt release requirement (see Article 292). 212   There have been no applications to the ITLOS regarding the prompt release of vessels detained on pollution charges. 213   Article 292(2) UNCLOS. 211

166   Part Three only subject to “reasonable procedures”, of which a common example would be the deposit of an appropriate bond or other financial security by the flag State.214 What constitutes “reasonable” procedures or financial security in this context is discussed later in this section. Second, the detaining State may refuse to release a vessel that poses a danger to the marine environment, even if security for the vessel has been posted as required by Article 226(1)(b). Article 226(1)(c) specifies that Without prejudice to applicable international rules and standards relating to the seaworthiness of vessels, the release of a vessel may, whenever it would present an unreasonable threat of damage to the marine environment, be refused or made conditional upon proceeding to the nearest appropriate repair yard. Where release has been refused or made conditional, the flag State of the vessel must be promptly notified, and may seek release of the vessel in accordance with Part XV. [author’s italics]

Several accidents (such as those involving the Prestige and the Erika in Europe) demonstrate how important it is for the port State to exercise its power to refuse to allow an unseaworthy vessel to sail. However, Article 226, when read in conjunction with Articles 218 and 219 UNCLOS, does not impose a positive obligation on the port State to detain an unseaworthy ship. The decision whether to allow the vessel to sail is rather left to the discretion of the port State (“as far as practicable”).215 A problem here is that the port State may not be wish to detain an unseaworthy ship for long, as a ship in very poor technical condition will of course pose a threat to the environment of the detaining State. Legal commentators have argued that the right to refuse to release a vessel, as provided for under Article 226(1)(c), relates only to her technical condition.216 Accordingly, a refusal to release a foreign ship detained in relation to an intentional discharge violation not caused by a technical deficiency is not covered by this paragraph (or by Article 219 UNCLOS), but instead falls

 In principle, the wording of Article 226(1)(b) suggests that other “reasonable procedures” than financial security may also be available, although it does not specify whether it is the detaining State or the flag State that is entitled to suggest alternatives. Generally, financial security would be most commonly required. 215  The role of port States has been strengthened through regional cooperation on port State control. The EU has also taken measures to increase the number of mandatory port controls and related procedures required to be undertaken by port States. However, the absence of a positive obligation under international law to prevent unseaworthy vessels from sailing does not entirely preclude potential liability on the part of the port authorities under municipal law: on the case of Prestige see Section 9.2.4 below. 216  See e.g., Molenaar (1998), p. 461. 214

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under Article 226(1)(b), which does not provide for any reasons to refuse release once the appropriate security has been posted. According to Molenaar, [i]n that situation [of an intentional discharge—A.P.] detention has a punitive or compensatory character. When an adequate bond or financial security has been posted there is no reason why the ship should not proceed to its next port of call. Both national and international rules, provided they are applicable, can be enforced.217

In practice, a State may consider it practical to detain the vessel and/or the crew in order to carry out its investigation and institute criminal proceedings. For example, the master and the crew may be prevented from leaving the country in order to ensure their availability for questioning and to appear in court. Furthermore, the port authorities may consider that a vessel that has a record of intentional discharge violations is likely to re-offend. Obviously, intentional discharges are not caused by the ship’s technical condition. Does UNCLOS preclude a port State from refusing to release a vessel and crew in such circumstances? In principle, a textual analysis of these provisions within the general context of Part XII does not support a restrictive construction of port States’ powers in this regard. Significantly, Article 226(1)(c) imposes only two express conditions on the detaining State. First, the vessel must present an “unreasonable threat” of damage to the marine environment, and, second, the port State must promptly notify the flag State of its refusal to release the ship. It is then left to the flag State to decide whether to request the release of the ship, as provided for, in particular, under Article 292 UNCLOS referred to above. A review of existing national practices suggests that a risk of future violations may be considered a good reason for keeping a vessel under detention. In the Mostoles,218 the Dutch Maritime Board found the decision by the port authorities to maintain the arrest of the vessel to be lawful. The vessel still had on board some engine-room bilge water that had been pumped into the cargo slop tanks. The port officer insisted on the slop tanks being discharged before departure rather than at the next port of call. Significantly, the port authorities had not been notified of the next port of call, which meant that they were unable to warn the relevant authorities of a possible discharge violation. The port officer’s suspicions that further discharge violations were likely to be committed once the vessel sailed were strengthened by the vessel’s history of illegal discharges (the oil record book showed that two illegal discharges had occurred earlier the same year). The Board decided that  Ibid., p. 462.  Reported by Lamarche (1995), pp. 148–149.

217 218

168   Part Three the officer could reasonably have concluded that the vessel posed a threat to the marine environment unless the slop tanks were discharged before the vessel sailed. In this connection, Anderson points out that [w]here there is a well-substantiated threat of damage to the marine environment, permission to leave the port may be refused. Many may consider that such a refusal should be upheld even though the owners of the vessel are prepared to put up a bond or other financial security. Prompt release, even on bail or under bond, should not lead to pollution: the purpose of Article 226(1)(c) is similar to that of Article 219, namely to avoid pollution.219

Of course, it is very unlikely that a port State will refuse to allow a delinquent vessel to sail under any circumstances. In practice, release will be made conditional upon some additional measures. This was the case with the Mostoles, which was allowed to proceed once its slop tanks had been discharged. Other measures might relate to improving the vessel’s procedures for safety management or discharge reporting.220 Article 226 does not elaborate the requirement that the ship must represent an “unreasonable” threat of damage to the marine environment. Is it unreasonable to cause pollution deliberately in contravention of international standards? Logically, it would certainly seem that steps should be taken to avoid such conduct. Insofar as pollution caused by the poor technical condition of the vessel is concerned, the port authorities have discretion to decide what level of non-compliance constitutes an unreasonable threat. Clearly a vessel in very poor technical condition will pose such a threat, but other relevant factors could include the potential size of a spill if an accident involving the particular ship were to occur.221 At the same time, the port State is not required to show that the vessel will probably cause pollution if allowed to sail: the fact that there is a threat of pollution damage is sufficient. A detaining State will commonly require a bond or other financial security to be posted before releasing the vessel. Article 226(1)(c), discussed above, does not make release conditional on active interference by the flag State.

 Ibid.  Such deficiencies may be seen as affecting the vessel’s compliance with technical and operational standards, which is assessed as part of port State control procedures. The imposition of reasonable requirements by a port State with respect to a vessel in an unsafe condition will hardly be viewed as an excessive exercise of jurisdiction. Flag States and ships have an obligation to comply with environmental safety requirements and freedom of navigation does not include the freedom to make illegal discharges. 221  For example, “target factors” applied under port State control procedures could be used as a framework for the analysis. Cf. provisions of Article 220 UNCLOS on substantial pollution and major damage to the environment. 219 220

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However, where the detaining State refuses to release the vessel (allegedly) in contravention of Article 226, the flag State may request prompt release under Article 292 UNCLOS. Article 292(1) states .

Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.

In the Saiga,222 the International Tribunal on the Law of the Sea (ITLOS) did not accede to the submission of Saint Vincent and Grenadines (the claimants) that no bond or security or only “symbolic” security needed to be posted in the course of the prompt release procedure under UNCLOS.223 However, the detaining State also has an obligation to set concrete requirements concerning any bond or security, which may or may not be viewed as reasonable by the flag State. Article 292 provides for an expedited procedure before an international tribunal for the release of foreign vessels. However, in order for the flag State’s claim to be admitted pursuant to Article 292, the flag State has to show that the detaining State has not complied with the provisions for prompt release which (in the case of pollution violations) are set forth in Article 226, as discussed above.224 An application for prompt release may also be submitted by the shipowner acting on behalf of the flag State.225 In practice, the shipowner will nearly always take an active role in the prompt release procedure. An examination of the practice of the ITLOS shows that in cases where the flag State has (in practice) no genuine link with the ship, its role is inevitably limited to the necessary formalities. This contrasts with the situation where the flag State has a “genuine” interest in the ship.226  The M/V “Saiga” Case (Saint Vincent and The Grenadines v. Guinea), 37 I.L.M. 360 (1998) (Int’l. Trib. L. of the Sea 1997), Judgment of 4 December 1997. 223  Ibid., para. 81. 224  Article 292 also applies to cases under Article 73 UNCLOS concerning coastal States’ right to the living resources of their EEZs (detentions in fisheries cases). 225  On the condition that such representation has been formally confirmed by the flag State. 226  See the discussion in Karim (2011), at p. 120 et seq., who compares the Volga case, cited in footnote 233 below (minimum interference by the flag State) with the Hoshinmaru case, cited in footnote 243 below (adoption of an active role by the flag State). In the Volga, the flag State had little or no real connection with the ship and, as was pointed out in the dissenting opinion of ad hoc Judge Shearer, the main burden of presentation was borne by 222

170   Part Three Article 292 does not address the situation where the flag State makes no effort to release a vessel flying its flag and does not avail itself of the prompt release procedure.227 In this situation, the shipowner may resort to other internationally established procedures designed to ensure compliance with requirements for bonding or the posting of other appropriate financial security, as referred to in Article 220(7). Thus, the Civil Liability Convention 1969 as amended by the 1992 Protocol provides for the release of an arrested ship so long as claims for pollution damage arising from an incident can be met from a compensation fund constituted by the owner of the vessel.228 In the Camouco, the question arose whether the flag State is bound by any time limit with regard to requesting prompt release under Article 292 (in this case Panama had submitted such a request more than three months after France had detained the Camouco). France submitted that, by failing to act promptly, the flag State had created a “situation akin to estoppels”, rendering the application for release inadmissible.229 Article 292(1) states that the question of release from detention “may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State. . . .”. The ITLOS did not, however, construe the 10-day period referred to in Article 292(1) UNCLOS as a deadline that precluded submission of an application for prompt release after its expiry.230 Both Articles 226 and 292 refer to bonding or other “appropriate” or “reasonable” financial security. UNCLOS does not clarify the nature of the bond or other financial security and does not contain any specific rules concerning the amount to be posted. Nordquist’s Commentary suggests that the word “appropriate” should be broad enough to cover any reasonable security that might be required in connection with civil proceedings.231 However, restricting

private lawyers hired by the owner. However, even purely formal participation by the flag State has been generally accepted for the purposes of Article 292 UNCLOS. 227  Shipowners and other individuals do not have independent standing in prompt release cases under Article 292 UNCLOS. See the Grand Prince case (Belize v. France), ITLOS judgment of 20 April 2001, http://www.itlos.org, where the ITLOS held that it did not have jurisdiction to hear the case because the applicant had failed to establish that Belize was the flag State of the detained vessel. A number of judges dissented, however, pointing out that the documentary evidence was insufficient to show whether Belize had revoked the vessel’s registration. 228  Article VI of International Convention on Civil Liability for Oil Pollution Damage (CLC) 1969, Article III(4) as amended by the 1992 Protocol. See also Anderson (1996) at p. 174. 229  The “Camouco” case (Panama v. France) (Application for prompt release), 39 I.L.M. 666 (2000), judgment of 7 February 2000, para. 51. 230  Ibid., para. 54. 231  Nordquist (1991), p. 343.

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the amount of the bond to the value of the vessel may leave the coastal State with insufficient security in cases where the pollution damage is substantial.232 In addition, in many cases the parties fail to agree on the value of the detained ship, which then has to be fixed by the ITLOS.233 While the tribunal has accepted that the full value of the vessel, including its gear and stores, may represent reasonable financial security for the vessel,234 it has generally not required the amount of security to be limited to the value of the vessel in the prompt release cases in which it has rendered judgment. On the contrary, it has confirmed that “the value of the vessel alone may not be the controlling factor in the determination of the amount of the bond or other financial security”.235 The ITLOS has examined what constitutes a “reasonable” bond in a number of cases in order to determine the amount, nature and form of the bond required under UNCLOS.236 In any event, the security does not need to be in the form of cash, but may be issued as a bank guarantee. The cargo may also be used as security. Thus, in the Saiga, the tribunal decided that it was reasonable to consider the gasoil discharged from the (unlawfully) detained vessel by the respondent State (Guinea) as a type of security to be held by the detaining State, and, depending on the outcome of the case, either to be returned in kind or as its equivalent in US dollars. The discharged gasoil was used as security both due to its commercial value (in total, 4,941.322 metric tons were discharged) and the likely difficulty of restoring the gasoil to the holds of the detained ship.237  Such a limitation was suggested by Nordquist (1991), p. 343. By comparison, the International Convention on Arrest of Ships (Geneva, 12 March 1999, in force on 14 September 2011), 4 Unif. L. Rev. n.s. 716 (1999) provides that “sufficient security” must be provided, which must not exceed the value of the ship (Article 4). However, in the Camouco, cited in footnote 229 above, para. 69, the ITLOS noted that “the value of the vessel alone may not be the controlling factor in the determination of the amount of the bond or other financial security”. 233  In the “Volga” Case (Russian Federation v. Australia) (Application for prompt release), 42 I.L.M. 159 (2003), Judgment of 23 December 2002, the parties managed to agree on the value of the vessel. In other cases, however, such as the Camouco, cited in footnote 229 above, and the Monte Confurco, cited in footnote 240 below, the Tribunal had either to arrive at a value itself or find a value somewhere between the two extremes argued by the parties. 234  The Volga case, op. cit., para. 73. 235  Camouco, cited in footnote 229 above, para. 69. 236  See, e.g., the judgments in the following cases: Saiga (cited in footnote 222 above), Camouco (footnote 229 above), Monte Confurco (footnote 240 below), and Volga (footnote 233 above). 237  The Saiga, cited in footnote 222 above, paras 83–84. But the Tribunal also added financial security to the bond required from the flag State of the detained ship. 232

172   Part Three A number of factors are relevant when determining the “reasonableness” of the bond required by the coastal State. In particular, as the ITLOS noted in the Camouco,238 consideration may be given to: the gravity of the alleged offences; the penalties that either have been or may be imposed under the laws of detaining State; the value of the detained vessel and of the cargo seized; and the amount and form of the bond imposed by the detaining State.239 The tribunal did not intend this list to be exhaustive, however, or for weight to be attached to any factor in particular.240 The amount of the security is established on a case-by-case basis, taking into account the need “to reconcile the interest of the flag State to have its vessel and its crew released promptly with the interest of the detaining State to secure appearance in its court of the Master and the payment of details.”241 The actual amount of security varies considerably depending on the circumstances of the case but does not, in any event, need to be limited by the value of the vessel. In a number of decisions, the ITLOS has attached significant weight when determining the amount of security to be posted to the gravity of the violation and the likely penalties faced by the crew. The amount of the penalty envisaged in the detaining State’s domestic criminal law will, therefore, be taken into account when determining the amount of security to be requested from the flag State.242 However, the “reasonableness” of the bond will not necessarily be determined by reference to the maximum potential penalty under domestic law.243 In the Volga case,244 the dispute concerned the imposition of non-financial conditions for the release of a fishing vessel, in addition to financial security. The Volga was a Russian-flagged fishing vessel that was accused of unlawful fishing within the Australian EEZ. The vessel was arrested on the high seas off the Australian EEZ and escorted to an Australian port. Three members of the crew, all Spanish nationals, were detained and subsequently charged with violations of the Australian Fisheries Management Act of 1991. Although the crew members were initially refused permission to leave Australia, their

 Camouco, cited in footnote 229 above, para. 67.  Ibid., para. 67. 240  Monte Confurco (Seychelles v France) (Application for prompt release), Case No. 6, ITLOS Reports 2000, p. 109, para. 76. 241  Ibid., para. 71. 242  E.g., in the Volga, cited in footnote 233 above. 243  The “Hoshinmaru” Case (Japan v Russian Federation) (Application for prompt release), Case No. 14, Judgment of 6 August 2007. 244  Volga, cited in footnote 233 above. 238 239

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bail conditions were subsequently changed, allowing them to return to Spain while the proceedings were pending on condition that they surrendered their passports and seaman’s papers to the Australian Embassy in Madrid and reported regularly to the Embassy. In addition, the shipowner deposited cash security for the crew members. In the prompt release proceedings, the Tribunal did not, however, deal with these conditions. The main issue pertaining to the “reasonableness” of the security focused on the imposition by the Australian court of two additional non-financial conditions. First, the shipowner was required to install a fully operational vessel-monitoring system on the Volga in order to ensure observance of measures to conserve the living resources of the Antarctic. Second, Australia requested detailed and independently verified information about the vessel’s owners, including the identity of the ultimate beneficial shipowner (the names of the parent companies), the names and nationalities of the directors of the registered shipowner (“Olbers”), as well as the names, nationalities and locations of the managers of the vessel’s operators, insurers and financers. The applicant flag State (Russia) argued that the bond requested was not reasonable within the meaning of Articles 73 and 292 UNCLOS. Australia submitted that the grave nature of the offences, seen in the light of the serious problem of illegal fishing and the danger it posed for the conservation of living resources and maintenance of the marine environment’s ecological balance, fully justified the imposition of stringent requirements for prompt release. In addition, the ship in question, the Volga, was known to have engaged in illegal fishing previously, and the Australian authorities had good reason to believe that she would continue to do so following release on bail. While the ITLOS expressed understanding for the concerns of the Australian authorities in such cases, it construed the reference to a “bond” (in Article 73) as referring to financial security. Accordingly, the tribunal concluded that non-financial conditions could not form part of a bond or other financial security within the meaning of Article 292 in respect of Article 73 violations. It did not accept that a “good behaviour” bond designed to prevent future violations of the laws of a coastal State could be considered as constituting a bond or security within the meaning of the above provisions.245  Two judges dissented in this case (as against 19 who supported the judgment), Judge Anderson and ad hoc Judge Shearer. The latter pointed out, in para. 19 of his dissenting opinion, that a “new ‘balance’ had to be struck between vessel owners, operators and fishing companies on the one hand, and coastal States on the other” because of the difficulties faced by the flag State as a result of modern ownership and flagging practices concerning fishing vessels.

245

174   Part Three The Volga case concerned a violation of fishing laws, rather than of discharge standards, as well as the coastal State’s rights within its EEZ. However, an interesting aspect of the tribunal’s reasoning was its interpretation of Article 73 as precluding non-financial security conditions. In this respect, the tribunal observed “where the Convention envisages the imposition of conditions additional to a bond or other financial security, it expressly states so.”246 The tribunal noted that this was the case with Article 226(1)(c), which provided for an opportunity to refuse the release of a vessel that posed an unreasonable threat to the marine environment, or to make such release conditional upon the vessel’s proceeding to the nearest repair yard.247 Unfortunately, the tribunal did not (and was not expected to) specify whether non-financial conditions for release in ship-source pollution cases were limited to a request to proceed to the nearest repair yard, as expressly set forth in Article 226, or could include other conditions of a non-financial character, such as those requested by Australia in the Volga. Consequently, it remains unclear whether the tribunal would apply such a narrow construction of “reasonable bond” in a case involving pollution.248 In this author’s view, the search for a proper balance of interests that is endorsed in the ITLOS case law warrants a broader approach to the interpretation of Articles 226(1) and 292. The “bond” posted in return for the release of the delinquent vessel must be reasonable in every respect. In particular, it may be necessary to take into account the “undoubted benefit that the owner of the vessel gains from its release”, as well as the seriousness of the risk that the vessel will re-offend.249 Municipal courts will have considerable discretion to decide questions concerning the pre-trial detention and release of the crew of the delinquent vessel. It is possible that the detaining State will not be willing unconditionally to release the crew (or some crew members) if they are facing criminal charges and there are doubts as to likelihood of their appearing before the court. Article 226(1)(b), in addressing detention in the case of environmental violations by vessels, does not distinguish between the prompt release of the vessel, on the one hand, and the crew, on the other. It does not specify whether the release of the vessel must necessarily be accompanied by the

 The Volga, cited in footnote 233 above, para. 77 of the Judgment.  Ibid. 248  See also Anderson (1996), at p. 177, who concludes that the application of Article 292 is unclear in the case of detentions for “irregularities or deficiencies on board a vessel, giving rise to reasonable fears of unreasonable threats of future pollution of the sea, with the result that release on bail or bonding is not suited to the needs of the situation facing the port’s authorities.” 249  See also the Dissenting Opinion of Judge Anderson in the Volga. 246 247

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release of the crew or vice versa. By contrast, Article 292(1) refers expressly to the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security. There is nothing in these provisions to preclude the flag State from requesting the prompt release of the crew, assuming the conditions of Article 292 are met. UNCLOS does not expressly regulate other coercive measures or measures intended to obtain security that the coastal State’s authorities may consider necessary in the course of a criminal investigation of a ship-source pollution incident. For example, it does not address the situation where measures intended to obtain security are directed not at the vessel herself or her crew, but at other assets of the shipping company or its representatives. For the purposes of the prompt release procedure, it is not inconceivable that the detaining State could be allowed to impose such measures as conditions for the release of the ship under Article 292, i.e., such measures would be “reasonable”. Article 292 does not apply to all possible situations in which a refusal by a coastal State to release a detained vessel might be viewed as being contrary to UNCLOS or other rules of international law. In principle, the prompt release procedure under Article 292 only applies in cases where the vessel has violated provisions of UNCLOS that expressly envisage the prompt release procedure, namely, Article 73 (violation of a coastal State’s laws to conserve the living resources of the EEZ) and Article 226 (pollution of the marine environment).250 Although the domestic proceedings relating to the investigation of the incident, the imposition of penalties and the prompt release procedure are, in practice, closely related, Article 292 applies “without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew”.251 Exercise of jurisdiction by a State to impose penalties under Articles 218 or 220 in violation of international law will have to be resolved by the States concerned within the framework of dispute resolution procedures that lie beyond the scope of Article 292, e.g., by resorting to

 By contrast, procedures under Article 292 UNCLOS will be unavailable in the case of detentions of pirate ships or of vessels involved with slave trading or narcotics trafficking. Detentions in contravention of Article 97 UNCLOS will also not be subject to the prompt release procedure of Article 292: see Anderson (1996), p. 168 et seq. Furthermore, Article 292 UNCLOS does not apply to vessels arrested to secure maritime claims. 251  Article 292 UNCLOS. See also Anderson (1996), p. 167. However, the ITLOS noted that it was “not precluded from examining the facts and circumstances of the case to the extent necessary for a proper appreciation of the reasonableness of the bond” (Monte Confurco Judgment, paragraph 74). 250

176   Part Three international dispute resolution mechanisms such as those provided for in other provisions of UNCLOS.252 Apart from the prompt release procedure provided for by UNCLOS, there are other means of ensuring the release of the vessel and her crew. In any event, Article 226 provides that the coastal State shall not delay a foreign vessel “longer than is essential for the purposes of the investigations provided for in Articles 216, 218 and 220”.253 This principle is generally reflected in municipal procedural rules, which do not encourage excessively long pre-trial detentions and other disproportionate limitations on accused individuals’ freedom.254 After all, a decision to release the detained ship and individuals may be taken by a domestic court within the framework of municipal procedures and on conditions acceptable to both parties. In such circumstances there will be no need to resort to international mechanisms. An alternative method for obtaining the release of a vessel is provided for in Article 290 UNCLOS “Provisional measures”, which provides that 1.  If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.

Notably, the availability of provisional measures depends on a dispute having been launched in an international tribunal (e.g., the ITLOS). This makes the procedure under Article 290 considerably less expeditious than that under Article 292. This is due to, inter alia, the requirement under Article 295 that local remedies must be exhausted before the dispute may be handed over to the international court.255 Proceedings by the detaining State will also be suspended (precluding the continuing application of procedural measures of a pre-trial character) in cases where the flag State avails itself of the right of pre-emption under Article 228(1) UNCLOS, which is discussed in more detail below. 7.4  Suspension and Restrictions on Institution of Proceedings As discussed above, Part XII UNCLOS grants port States and coastal States jurisdiction to prosecute the perpetrators of discharge violations in their territorial seas and EEZs, subject to certain conditions. In the case of proceedings  See generally Molenaar (1998), p. 481 et seq.  Article 226(1)(a) UNCLOS. 254  But see Section 7.5 below. 255  On Article 290 see also Molenaar (1998), p. 490, and Vicuña (2007). 252 253

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relating to discharge violations in the EEZs of coastal States, the jurisdiction of port and coastal States is further limited by the provisions of Article 228 UNCLOS, under which the flag State may request a port or coastal State to suspend and transfer proceedings relating to a violation committed by a ship flying its flag.256 Thus, Article 228(1) “Suspension and restrictions on institution of proceedings” provides Proceedings to impose penalties in respect of any violation of applicable laws and regulations or international rules and standards relating to the prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the State instituting proceedings shall be suspended upon the taking of proceedings to impose penalties in respect of corresponding charges by the flag State within six months of the date on which proceedings were first instituted, unless those proceedings relate to a case of major damage to the coastal State or the flag State in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels. The flag State shall in due course make available to the State previously instituting proceedings a full dossier of the case and the records of the proceedings, whenever the flag State has requested the suspension of proceedings in accordance with this article. When proceedings instituted by the flag State have been brought to a conclusion, the suspended proceedings shall be terminated. Upon payment of costs incurred in respect of such proceedings, any bond posted or other financial security provided in connection with the suspended proceedings shall be released by the coastal State. [author’s italics]

Article 228(1) confirms that the territorial jurisdiction of the coastal State will supersede the flag State’s jurisdiction where a violation is committed within the coastal State’s territorial sea or internal waters. As discussed earlier, the territorial principle of criminal jurisdiction has been applied by some national courts in such a way as to cover crimes committed outside the respective State’s territory that nonetheless have caused damage within the State’s territory. The wording of Article 228(1) does not preclude the application of the objective territorial principle altogether, but the flag State may at least argue that a violation that occurred outside (but subsequently affected) the territorial sea of the coastal State was committed beyond the territorial sea for the purposes of Article 228. Where a violation has occurred beyond the territorial sea of the State instituting proceedings against the vessel, the flag State is entitled to take over these (criminal or other) proceedings.257 Thus, if proceedings concerning a  On Article 228 UNCLOS generally see also Nordquist (1991), p. 348 et seq.  Article 228 speaks of “proceedings to impose penalties”, referring, apparently, to any type of proceedings, whether criminal or administrative. Article 228(1) also specifies that it

256 257

178   Part Three discharge violation in the territorial sea of a coastal State were first instituted by the port State (e.g., because the vessel had left the waters under the jurisdiction of the coastal State without being detained), the coastal State will lose the right to take over the proceedings, unless the flag State fails to institute its own proceedings within the time limits envisaged by Article 228(1). At the same time, the coastal State will not lose jurisdiction to impose penalties on a delinquent vessel that has committed a violation in its EEZ merely by virtue of the fact that the vessel left the EEZ before interdiction by the coastal authorities (as envisaged in Article 220). In the Alambra, which was examined earlier in this part, the Supreme Court of Sweden noted that the superiority of the flag State’s jurisdiction, subject to the conditions set forth in Article 228, does not automatically deprive the coastal State of the right to institute its own proceedings. On the contrary, the court even admitted the possibility of parallel proceedings (in the flag and coastal States) and of the imposition by the coastal State, even after a relatively long delay, of a penalty on the perpetrator.258 There are two exceptions to the flag State’s right to take over proceedings: i) where the incident has caused major damage to the coastal State; or ii) where the flag State in question has repeatedly disregarded its obligation effectively to enforce the applicable international rules and standards. These exceptions are dealt with in more detail below. In all other cases, the coastal or port State that initially instituted proceedings vis-à-vis the foreign vessel will have to suspend these proceedings if the flag State institutes proceedings relating to equivalent (“corresponding”) charges within six months of the date on which proceedings were first instituted.259 Article 228 also requires the flag State in due course to make available to the State that has previously instituted proceedings a full dossier concerning the case and records of proceedings brought pursuant to Article 228. The flag State is, of course, entitled to terminate the transferred proceedings on the grounds of insufficient evidence.260 Although in many cases such a decision applies to situations where proceedings are instituted in respect of any violation of “applicable laws and regulations or international rules and standards relating to the prevention, reduction and control of pollution from vessels” (author’s italics), probably also implying that violations of a coastal State’s domestic rules fall within the category of that which may be taken over by the flag State. However, as discussed elsewhere in this book, pollution violations within the EEZ are established, generally, by reference to “international” standards. 258  Riksåklagaren (Chief State Prosecutor) mot Capri Marine Limited (2004), Supreme Court of Sweden, ND-2004-1. The court did not however dwell on these observations in more detail. On the Alambra see also Section 6.3.3 above. 259  Article 228(1) UNCLOS. 260   See Article 6 MARPOL.

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may reflect a lack of will on the part of the flag State to enforce discharge standards, it may also be attributable to the heavy burden of proof that generally applies under domestic law in criminal proceedings. Given this latter fact, there was no real need for UNCLOS explicitly to incorporate the flag State’s right to terminate proceedings, as this merely serves to encourage flag States that may already be unwilling to take enforcement measures to terminate proceedings.261 As pointed out earlier, a flag State will also discontinue criminal proceedings in relation to a pollution violation if it lacks a proper legal basis in its domestic law to pursue such charges. What implications would this have for a coastal State’s ability to exercise enforcement jurisdiction? Given its rather general wording, Article 228 UNCLOS can be construed in such a way as to restrict the flag State’s discretion with regard to the institution of proceedings. Article 228 refers to proceedings instituted by the flag State to impose “corresponding charges”. This may be understood as requiring the flag State to institute proceedings of the same type as those instituted by the port or coastal State (e.g., criminal proceedings, where the latter considers these adequate). However, it can be argued that the flag State retains legislative and enforcement jurisdiction over the vessels flying its flag, and may not be required (or forced) to take any particular kind of positive enforcement action in relation to its vessels.262 On the other hand, if the flag State chooses to refrain from prosecuting the alleged perpetrators, it is possible that the port or coastal State will consider itself entitled to pursue the original proceedings. In any event, Article 228(1) does not require port or coastal States to terminate their suspended proceedings unless the flag State proceedings have concluded.263 At the same time, the exceptions to the flag State’s right to take over proceedings do not include the situation where no adequate substantive and procedural rules for prosecuting a perpetrator of pollution are envisaged in the domestic laws of the flag State, thus raising reasonable doubts on the part of the coastal State as to whether the flag State will impose appropriate penalties. According to Article 228, once the proceedings instituted by the flag State have been brought to a conclusion, the port or coastal State’s suspended proceedings shall be terminated. Upon payment of costs incurred in relation to such proceedings, any bond posted or other financial security provided  Molenaar (1998), p. 464.  However, EU Directives impose a positive obligation on flag States that are also EU Member States in this regard: see Chapter 9 below. 263  In this sense, Article 228(1) UNCLOS introduces a sort of aut dedere aut judicare principle into the jurisdictional regime of the law of the sea, as the flag State is “forced” either to adjudicate the matter itself or to surrender it to the coastal State’s jurisdiction. 261 262

180   Part Three in connection with such proceedings shall be released by the coastal or port State.264 Where a large bond or other type of financial security has been imposed on the vessel, this may encourage the flag State to conduct its proceedings quickly.265 Finally, any lack of progress or unreasonably lengthy proceedings by the flag State may result in the port or coastal State resuming the original proceedings.266 Interestingly, Article 228 does not impose a positive obligation on the flag State to request the suspension, transfer and termination of proceedings instituted in relation to its vessels by a non-flag State. Generally, the flag State has discretion to decide whether to avail itself of the provisions of Article 228.267 The discretionary nature of these provisions may provide coastal and port States with improved opportunities for enforcement in cases where the flag State refrains from exercising its right to take over the case. Coastal or port State enforcement may, however, have unfortunate consequences for the individuals (i.e. the master and the crew) involved in criminal proceedings in a foreign jurisdiction, as such persons may have preferred any proceedings to take place in the flag State. One of the exceptions to the flag State’s power to request the suspension of proceedings in a foreign jurisdiction relates to criminal or other proceedings instituted by the coastal State against a vessel in transit that has committed a discharge violation within its EEZ that has caused “major damage” or the threat of such damage to the marine environment of the coastal State.268 The aim of Article 228(1) appears to be to ensure that the flag State will be able to take over proceedings instituted by a port State in respect of violations that are less than “major” in a coastal State’s EEZ. Furthermore, Article 228(2) provides Proceedings to impose penalties on foreign vessels shall not be instituted after the expiry of three years from the date on which the violation was committed, and shall not be taken by any State in the event of proceedings having been instituted by another State subject to the provisions set out in paragraph 1.

The first two paragraphs of Article 228 are significant in cases where more than one State asserts criminal jurisdiction over a discharge violation. The

 Article 228(1) UNCLOS.  Molenaar (1998), p. 464. 266  Ibid., UNCLOS does not explain, however, how long the coastal State is obliged to wait for the flag State to complete the proceedings. 267  The same discretion applies with regard to the prompt release procedure envisaged in Articles 226(1) and 292 UNCLOS for vessels detained for pollution violations. 268   Article 220(6). 264 265

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paragraphs preclude both the trying of the same perpetrator in parallel trials in different States and also the instituting of new proceedings in relation to the same charges where the case has already been adjudicated.269 Article 228(2) provides that, if criminal proceedings with regard to a pollution violation have been instituted in one State, any other State—apart from the flag State, as Article 228(3) makes clear—will be precluded from instituting proceedings. Thus, a coastal State will not be able to institute proceedings with regard to a discharge violation within its waters if proceedings in this regard have already been launched by another coastal State affected by the discharge or if the flag State has exercised its rights under Article 228(1).270 The coastal State will be precluded from instituting proceedings where the flag State has already done so, unless one of the exceptions of Article 228(1) UNCLOS applies. In addition, according Article 228(2), a coastal State may, in principle, also be precluded from instituting proceedings if the port State has already done so.271 Article 228 grants jurisdiction to impose penalties to the State where proceedings were first instituted, even though another State may be seen as more closely concerned with the pollution violation and as having a stronger basis for exercising jurisdiction. Thus, apart from the exceptions envisaged in its first and third paragraphs, Article 228 proposes a solution based on the principle of “first come, first served” when allocating jurisdiction between the States. Apart from that, the provision does not require other factors to be taken into consideration when allocating jurisdiction between two or more States with similar interests in prosecuting the polluter. However, all States but the flag State will be precluded from instituting proceedings once the three-year time limit has lapsed.272 There are also no practical mechanisms in either Article 228 or UNCLOS generally for extradition and the transfer of cases. In such circumstances, a dispute between two such States could be resolved by agreement, e.g., the States involved may be party to an agreement on extradition and the transfer  As the commentary to UNCLOS points out, the drafters of Article 228 UNCLOS were concerned about the potential for not merely double but multiple jeopardy in ship-source pollution cases: see Nordquist (1991), p. 350. The principle of ne bis in idem is also set forth in international treaties: see, e.g., the European Convention on the Transfer of Proceedings in Criminal Matters. See also the Eurojust decision in the Prestige case (Section 6.3.5 above). 270  In addition, Article 218(2) UNCLOS envisages a limitation whereby the port State may only institute proceedings with respect to a pollution violation committed within the maritime zones of a coastal State if the latter requests the port State to do so: see Section 6.3 above. 271  Although Article 218(2) would deal with these situations: see Section 6.3.4 above. 272  See, however, the Royal Caribbean, cited in footnote 198 above, on how to avoid this, and other, restrictions. 269

182   Part Three of criminal proceedings, and the provisions of such an agreement may turn out to apply to the matter in hand.273 However, there is no comprehensive global framework for cooperation in criminal matters between States. UNCLOS does not address the situation where a judgment imposing penalties is rendered by a municipal court before the flag (or other) State requests the suspension of the proceedings. In this case, a second prosecution for the same violation in another State may be precluded by the principle of ne bis in idem, which legal commentators have considered to constitute a fundamental right.274 The protection of the “recognized rights” of the accused is expressly envisaged in Article 230 UNCLOS, which should be construed (as is argued in the next section) as including this right. Lastly, the flag State is free to take any measures, including the institution of criminal proceedings, irrespective of prior proceedings by another State.275 Namely, Article 228(3) provides, 3. The provisions of this article are without prejudice to the right of the flag State to take any measures, including proceedings to impose penalties, according to its laws irrespective of prior proceedings by another State.

This right of the flag State will not, however, supersede the afore-mentioned principle of ne bis in idem. Disputes may arise, however, if the flag State takes steps to enforce penalties on the basis of this provision without due regard to proceedings brought by other States.276 In addition to the exception that applies where a violation committed outside the territorial sea causes major damage to the coastal State, the flag State’s right of pre-emption will not apply where “the flag State in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels”. The wording of this provision makes it clear that the point of reference for the “opposing” State has to be the conduct of the flag State (not any

 Such as, e.g., the European Convention on the Transfer of Proceedings in Criminal Matters (Council of Europe, Strasbourg, 15 May 1972), European Treaty series—No. 73. 274  See, e.g., Bassiouni (1992–1993) and Morosin (1995). See also Article 13 of the Draft Convention on Jurisdiction with Respect to Crime (American Society of International Law, 1935), which encourages States to refrain from prosecuting a foreign national who proves to have already been prosecuted in another State for a crime “requiring proof of substantially the same acts or omissions and has been acquitted on the merits, or has been convicted and has undergone the penalty imposed, or, having been convicted, has been paroled or pardoned.” 275   Article 228(3) UNCLOS. 276  Molenaar (1998), p. 464 also points out that the provisions of paragraph (3) of Article 228, confirming that the flag State is entitled to take enforcement measures on its own behalf, may in certain circumstances give rise to a conflict with the principle of ne bis in idem. 273

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history of violations by the ship or shipowner) when seeking to reject the flag State’s request to suspend and transfer the proceedings. This precludes the application of this exception to situations where a particular vessel is caught repeatedly committing minor but deliberate and unlawful discharges. The key question is how States should construe the meaning of “repeatedly” in relation to the flag State’s disregard of its obligations concerning the “effective enforcement of the applicable international rules and standards in respect of violations committed by its vessels”.277 As explained earlier, the “applicable international rules and standards” are determined by reference to the relevant safety instruments adopted by the International Maritime Organization (IMO). These are binding on the flag State and coastal State involved.278 It is also necessary to scrutinize the meaning of “enforce effectively”. Article 228(1) does not explain the meaning of this expression in more detail. Flag States’ obligations with regard to the enforcement of anti-pollution rules are set forth in a range of UNCLOS provisions. The most notable of these is Article 217 “Flag State enforcement”, which outlines the flag State’s duties in a rather general way. How can a coastal State establish that a particular flag State has repeatedly failed to comply with these provisions? Could a State that is known as a “flag of convenience” fall within the exception provided for in Article 228(1) UNCLOS merely by virtue of this reputation? Is a State that relies on the flag State’s repeated misconduct also expected to prove the absence of a genuine link between the flag State and the delinquent vessel? An obligation to prove the absence of a genuine link between the delinquent vessel and the flag State would place a very significant burden of proof on the coastal State. In practice, it would probably deprive this exception of any real meaning, as a State would be unlikely to be able to meet such a requirement.279 In this author’s view, a more reasonable interpretation of this provision would limit the coastal State’s burden of proof to showing (as the wording of the provision suggests) that the flag State in question is known in the world community for its poor enforcement record. In any case, the wording of Article 228(1) does not require such a record to be established by reference  The legal commentary is rather limited on this point. For a general commentary on Article 228 UNCLOS see Nordquist (1991), p. 348 et seq. 278  See also text accompanied by footnotes 106 and 164 above. 279  At the same time, the absence of the genuine link would also have considerably more farreaching consequences for the ship and the flag State, as in such circumstances the coastal State could, in principle, rely on Articles 92 and 110 UNCLOS and disregard the flag State altogether, including the rules on enforcement jurisdiction set forth in Part XII. 277

184   Part Three to the flag State’s failure to take enforcement action in relation to a particular port or coastal State. What is important is to establish a general lack of proper enforcement by the flag State. This should be sufficient to establish, for the purposes of this provision, the flag State’s repeated disregard of its obligations.280 Insofar as the transfer of proceedings between non-flag States is concerned, Article 218(4) UNCLOS regulates transfers of proceedings from a port to a coastal State, stating that The records of the investigation carried out by a port State pursuant to this article shall be transmitted upon request to the flag State or to the coastal State. Any proceedings instituted by the port State on the basis of such an investigation may, subject to section 7, be suspended at the request of the coastal State when the violation has occurred within its internal waters, territorial sea or exclusive economic zone. The evidence and records of the case, together with any bond or other financial security posted with the authorities of the port State, shall in that event be transmitted to the coastal State. Such transmittal shall preclude the continuation of proceedings in the port State.

This provision does not explain whether the flag State or the coastal State has priority if both send requests to the port State. As discussed above, Article 228(1) provides guidance in this respect by allocating jurisdiction to the coastal State in cases where the violation has occurred within its territorial sea, where major damage has been caused by a violation beyond its territorial sea, or where the flag State has a record of repeatedly failing to take enforcement action. Remarkably, Article 218 does not set any time limit for the institution of corresponding proceedings by the flag or coastal State and, consequently, for any request for the suspension of proceedings instituted by the port State.281 Lastly, Article 228 does not establish a mechanism for a State of nationality of the master or the crew (or of a legal person linked to the delinquent vessel ) to take over proceedings in cases where such a State claims jurisdiction to impose criminal sanctions for the pollution incident or other environmental violation. As pointed out earlier, the active personality (nationality) principle

 Literally speaking, a very few incidents of non-enforcement could constitute “repeated” disregard. Port State control lists may provide some guidance in this respect: see, e.g., information on flag State compliance as summarized in the “Black, Grey and White List (BGW List)” of flag States under the Paris Memorandum on Port State Control at http:// www.parismou.org. It would also be advisable to target those flag States whose ships are known for intentional discharge violations and/or repeatedly falsifying oil record books. A certain margin of appreciation should be afforded to the coastal State when interpreting this provision. 281  Molenaar (1998), p. 464, notes that Article 218(4) could be viewed as lex specialis. 280

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of jurisdiction is well established and some provisions of UNCLOS assign a State of nationality the same rights as the flag State. However, UNCLOS does not provide mechanisms whereby States of nationality may cooperate or coordinate their activities with other States. In particular, the treaty does not regulate the sending of requests by States of nationality to coastal or flag States for materials relating to investigations or the suspension of proceedings.282 7.5  Rights of the Crew in Criminal Pollution Cases The individuals most directly related to a vessel involved in a pollution incident will be the master and the crew. These persons will be questioned, and in many cases arrested, by the coastal authorities immediately after the incident has taken place or has been discovered. Frequently they will be perceived as the only actual perpetrators of the pollution. Meanwhile, the shipowner and other actors associated with the ship will generally take care to steer well clear of the detaining and prosecuting State’s jurisdiction.283 The difficulties commonly faced by the master and the crew in criminal pollution cases have been well illustrated following several notorious incidents at sea. In particular, periods of pre-trial detention may be lengthy, with release made subject to the posting of excessive amounts of security, as demanded by the coastal or port State.284 Like its predecessors, UNCLOS contains a range of provisions that may be used to protect the interests of the crew vis-à-vis measures imposed by the coastal State pursuant to the (alleged) violation of its laws.285 These provisions, which were discussed earlier in this Chapter, restrict coastal States’ jurisdiction over maritime incidents on the high seas (Article 97) and outside the territorial waters of other States (Articles 220, 226 and 228). The flag State may also request the prompt release of the vessel and the crew (Article 292) and request the port State to suspend and transfer proceedings that relate to violations beyond the port State’s waters (Article 218(4)). In addition,

 Such mechanisms may be provided for separately in extradition and legal assistance treaties between States. Such treaties lie outside the scope of this work. 283  Or at most will suffer the imposition of monetary penalties or administrative fines. 284  See Gold (2006) at p. 545 for an overview of some typical problems faced by the master and the crew in criminal proceedings involving discharge violations. See also the First Working Group Report of the Comité Maritime International (CMI) International Working Group on the Fair Treatment of Seafarers (January 2006), available at http://www .comitemaritime.org which describes practices such as lengthy detentions and other unfair treatment of seafarers employed on ships that have been involved in maritime accidents. 285  See Oxman (1998) for a discussion of the relationship between human rights law and the law of the sea (UNCLOS). 282

186   Part Three UNCLOS requires the coastal State to notify the flag State of any arrest made and of any action taken and penalties imposed.286 However, these provisions are aimed primarily at confirming the supremacy of the flag State’s jurisdiction and protecting the freedom of navigation in general. The protection afforded to members of the vessel’s crew is more or less incidental.287 Section 7 “Safeguards” is designed to protect foreign vessels and crews against excessive enforcement measures by non-flag States. It says virtually nothing about the flag State’s obligation to exercise jurisdiction over the vessels flying its flag.288 It would, however, be logical to assume that flag States and States of nationality will also have to respect the “recognized rights of the accused” envisaged in Article 230(3) UNCLOS.289 As examined earlier in this Chapter, flag States enjoy very extensive enforcement jurisdiction and are entitled, subject to some exceptions, to take over proceedings from coastal and port States, thereby protecting crews from prosecution in foreign jurisdictions. The discretionary nature of a flag State’s enforcement jurisdiction means, however, that the flag State may choose not to exercise the rights envisaged inter alia in Article 228. Failure by the flag State to take over the proceedings, or to take measures to request the vessel’s release upon the posting of reasonable security, will have unfavourable consequences for the master and the crew. The IMO Guidelines on the Fair Treatment of Seafarers in the event of a maritime accident290 encourage both flag States and shipowners, on the one hand, and seafarer States (States of nationality), on the other hand, to take more proactive action to protect the crew following a maritime incident. In particular, the Guidelines state that flag States should “take all necessary measures to ensure the fair treatment of seafarers” on their vessels, including “utilizing international dispute mechanisms” to secure the prompt release of vessels and crews upon the posting of reasonable security.291 With regard to proceedings instituted by non-flag (coastal or port) States, Article 230 UNCLOS “Monetary penalties and the observance of recognized

 Article 231 UNCLOS. See also footnote 129 above on the role of the seafarer State.  In this author’s view. However, see Oxman (1998), who argues at p. 422 that “the Convention is certainly remarkable in the attention it devotes to the human rights consequences of expanding the basis of jurisdiction” of coastal and port States. 288  Generally, the positive obligations imposed on flag States are set forth in Article 94 UNCLOS (discussed in Section 6.2 above). 289  However, according to Oxman (1998), at p. 421, “one would generally have to look outside the Convention for the human rights obligations of the flag State with respect to the owner of the ship and with respect to its crew, passengers and cargo”. 290  IMO/ILO Resolution LEG.3(91) adopted on 27th April 2006. 291  Ibid., point 10.11. 286 287

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rights of the accused” deals more specifically with the rights of the crew. Article 230 provides 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. 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.

Generally, UNCLOS does not specify what penalties should be imposed for ship-source pollution violations, apart from requiring (in line with Article 4 MARPOL) these penalties to be adequate in severity. Issues concerning the adequacy of penalties will be resolved by the competent domestic court according to the rules and procedures of the relevant State. UNCLOS is, however, very clear on one point: only monetary penalties may be imposed for pollution violations committed by foreign vessels within and beyond the territorial sea, unless the violation is wilful and serious and took place within the territorial sea of the coastal State.292 There is no definition of “monetary penalties” within the meaning of this provision. In this author’s view, however, the term covers a broad range of measures, including monetary fines and confiscation of property.293 The criterion for determining the “monetary” character of a penalty should be whether such penalty serves as a sufficient deterrent of economic character to discourage future violations and whether it provides the coastal State with financial restitution of its expenses in relation to the proceedings. Although UNCLOS restricts the types of penalties that may be imposed on a foreign vessel for a pollution violation, it leaves a range of other important issues arising from the criminal proceedings to the States to regulate in their domestic laws. For example, the treaty does not define “wilful and serious” pollution and does not prescribe which persons may be subjected to penalties for discharge violations. As pointed out elsewhere in this book, the

 See Nandan and Rosenne (1993), p. 795, who note with respect to coastal States’ enforcement of penalties for fisheries violations in the EEZ that some coastal States continue to apply imprisonment, in violation of Article 73. 293  See also the prompt release cases examined earlier in this Chapter, where assets were seen as being of financial value to the parties involved. 292

188   Part Three reference to violations committed by “foreign vessels” sheds no light on the scope of the provision for the purposes of criminal law, as an actual vessel may hardly be charged with a criminal offence. Examples from practice (in the light of other provisions of UNCLOS) confirm that while the master and members of the crew may be punished, the prosecution of other natural and legal persons is more unusual in most jurisdictions, even where the municipal criminal law contains provisions envisaging such persons’ liability.294 Penalties of an administrative and criminal nature (mainly in the form of fines) have, however, been imposed on shipping companies. More recent practice suggests that other persons related to the ship are also now liable to be prosecuted, including ship owners, cargo owners, and the relevant classification society.295 Article 230 UNCLOS also does not prescribe what non-monetary penalties could, where permitted, be imposed for discharge violations. Examples from practice confirm that such penalties in pollution cases may include imprisonment or probation, in cases where the limitations envisaged in Articles 230(1) and 230(2) do not apply. Although, in contrast to Article 73 UNCLOS, these provisions do not prohibit other forms of corporal punishment, it may be concluded, in the light of the content of Article 230(3), that barbaric forms of corporal punishment would in any case not be permitted under the international law.296 Article 230 does not apply to violations committed within a State’s internal waters, exposing foreign crews to likely imprisonment in serious cases. Thus, a pollution incident that occurs just inside the baselines will have completely different, more drastic, implications for criminal liability than an identical incident that occurs just outside the baselines delimiting the coastal State’s internal waters from its territorial sea. Under international law, the crew in the former case may legitimately be punished by imprisonment. In the latter case, however, imprisonment will only be lawful if the court can establish that the pollution was wilful and serious. In the author’s view, domestic law enforcers should take a broad range of factors into account when determining what penalty to apply for accidental (negligent) pollution within the internal

 At least in the States studied by the author and discussed in Part Four of this book. However, the US courts commonly impose criminal penalties on shipping companies: see, e.g., Dickman (1999). 295  The case of the Erika, discussed in Section 9.2.4 below, is the principal example so far in Europe. 296  Cf. Article 73(3) UNCLOS, which expressly provides that penalties for violations of fisheries laws and regulations in the EEZ of a coastal State may not include imprisonment, in the absence of agreement to the contrary by the States concerned, or any other form of corporal punishment. 294

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waters. These should include whether a different penalty would have applied if the location of the accident had been slightly different.297 State practice also shows that a coastal State may circumvent relatively easily the limitations imposed by UNCLOS on available enforcement measures. Instead of instituting criminal proceedings in relation to the actual discharge violation (which may have occurred outside its jurisdiction), a State simply needs to target a related violation, such as failure to alert the authorities or falsification of oil record books. As a general matter this practice may be criticized for nullifying the purpose of Article 230(1). However, States will probably avoid bringing prosecutions (and imprisoning offenders) unless a violation is reasonably serious. The two cases—the Royal Caribbean (the United States) and the Erika (France)298—illustrate that certain conduct, such as, respectively, obstructing justice by falsifying discharge records and endangering persons on board by operating an unseaworthy vessel—may reasonably be viewed as serious enough to justify prosecution. May coastal States in some cases involving pollution violations outside their internal waters deviate from the provisions of Section 7 “Safeguards”? And from Article 230 UNCLOS in particular? As a matter of general principle, ignoring Section 7 “Safeguards” in its entirety is out of the question. Several of the safeguards provided for therein “are in fact fundamental rules of judicial procedure and would have to be observed in all situations, for example observance of recognised rights of the accused under Article 230(3) and notification of the flag State under Article 231.”299 Some of these rules also apply to flag States, which generally are not the addressees of Section 7. These include, remarkably, the obligation to respect the “recognized rights of the accused”, examined in more detail below. Some of the provisions of Section 7 provide for exceptions to the limitations on the coastal States’ measures vis-à-vis foreign vessels. For example, a coastal State is expressly entitled to refuse to release a foreign vessel, even if a bond is provided, where the vessel represents an unreasonable danger to the environment. Furthermore, Article 230(2) permits non-monetary penalties to be imposed in cases of “serious and wilful acts of pollution in the territorial sea” that will also have the effect of making passage non-innocent within the meaning of Article 19 UNCLOS.300 Thus a vessel in non-innocent passage  But States do not generally share this view: see, e.g., the discussion of the Full City and the Arisan (Norway) in Chapter 10 below. 298  See, respectively, Sections 6.3 above on the Royal Caribbean and 9.2.4 below on the Erika. 299  Molenaar (1998), p. 466. 300  Ibid., p. 14 and p. 467. 297

190   Part Three through the territorial sea will be deprived of the protection offered by Section 7 “Safeguards”. Does Article 230(1) preclude in all circumstances the imposition of nonmonetary penalties on foreign vessels that have committed discharge violations outside the territorial sea, i.e., in the EEZ? The wording of Article 230 also covers cases where major damage has been caused to the marine environment of the coastal State, even though the discharge violation was committed “beyond the territorial sea”. This implies that coastal authorities may not penalize such violations with imprisonment or other non-monetary penalties. This does not exclude the possibility, however, that a coastal State whose coastline has been damaged by an accident outside its territorial sea could nonetheless apply the “effects” or objective territoriality doctrine to justify the institution of proceedings and the application of non-monetary penalties.301 Finally, ice-covered areas are regulated separately under Section 8 “Icecovered areas” and thus fall outside the scope of Section 7 “Safeguards”. Section 8 is not referred to in the enforcement provisions of Part XII or vice versa: the wording of Article 234 does not refer to either the limitations provided for in Articles 218 and 220 or the provisions of Section 7, including Article 230. Article 234 of Section 8 provides, Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence. [author’s italics]

Article 234 permits a coastal State to adopt stricter discharge rules than those accepted internationally with regard to such “ice-covered areas”, even

 Even in the case of the Erika, which involved a major pollution accident in the French EEZ causing immense damage to the French coastline, only monetary (criminal) penalties—albeit very substantial—were imposed on the defendants. No criminal penalties were imposed on the master, however, who had been detained initially and who was one of the defendants, as the court did not find sufficient evidence of criminally punishable fault on his behalf or of a causal link between his omissions and the accident. It is open to speculation as to whether the master would have received a prison sentence had the evidence been viewed as sufficient.

301

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where such areas extend beyond the territorial sea. Article 234 “picks up the theme of article 194, paragraph 5, with its reference to ‘rare or fragile ecosystems’.”302 There is no definition of “ice” or “ice-covered areas” in the convention, although Article 234 refers, rather descriptively, to “particularly severe climatic conditions and the presence of ice covering such areas for most of the year” which creates “obstructions and exceptional hazards to navigation”. Nordquist’s Commentary notes that “[t]he article is not limited to ice which originates at sea—it relates to all ice encountered at sea” [original italics].303 Article 234 provides for a broader prescriptive jurisdiction than that generally granted to coastal States under Part XII. A comparable exception exists in Article 211(6) UNCLOS, which permits a coastal State, by acting through the IMO, to establish a “particularly sensitive sea area”, where “the international rules and standards . . . are inadequate to meet special circumstances . . .”. Importantly, the provision also refers to a coastal State’s right to enforce its domestic rules. By analogy with the provisions of Article 220, this includes jurisdiction to impose penalties for violations of the applicable discharge rules. Is the criminal enforcement jurisdiction of a coastal State broader within ice-covered areas than in the “regular” parts of its EEZ? Such an interpretation seems reasonable in the light of the special place of Article 234 in the general scheme of UNCLOS, i.e., it is placed outside Section 7. It may also be supported by the absence of any cross-references between Article 234 and the other provisions of Part XII on enforcement. Broader enforcement jurisdiction would, in particular, afford coastal States the opportunity to interdict and, where necessary, prosecute foreign vessels for discharges not amounting to “substantial discharges” causing “significant” pollution or “major damage”, as otherwise required under Article 220(5) and (6). Furthermore, some important limitations envisaged in Section 7 “Safeguards”—notably, the flag State’s right to request the suspension and transfer of proceedings (Article 228) and the restrictions on the types of penalties (Article 230)—would not apply in cases involving foreign polluters in ice-covered areas. In the author’s view, Article 234 permits the coastal State to exercise a broader enforcement jurisdiction by virtue of the provision’s express emphasis on the importance of special measures to prevent and control pollution in these environmentally fragile areas. The coastal State is only prohibited from

 Nordquist (1991), p. 393.  Ibid. The World Meteorological Organisation (WMO) maintains a manual of standardized sea-ice terminology and ice-reporting codes, including an illustrated glossary of sea-ice conditions.

302 303

192   Part Three discriminating between vessels on the grounds that they are flying different flags. However, the coastal State will still be bound by those provisions of Section 7 “Safeguards” that originate from customary rules of international law or that reflect rules or general principles of international law binding on States irrespective of the convention. For example, a coastal State should not interfere with the navigation of a foreign vessel unless it has reason (“clear grounds”) to suspect that a discharge violation has occurred. Generally, a coastal State will not be allowed to go beyond what is reasonable and proportionate in enforcement measures adopted vis-à-vis a foreign ship.304 At the same time, the limitations envisaged in Article 230 with regard to the types of penalties that may be applied are not as clear in cases of pollution in ice-covered areas. Article 230 is not viewed as an expression of a customary rule by all States and this author argues that States cannot be considered to have accepted greater restrictions on their jurisdiction than was agreed upon under the convention.305 Similarly, the rules of Article 228(1) regulating the right of the flag State to take over proceedings may not be fully applicable in the case of pollution violations in ice-covered parts of the EEZ. However, the scope of the coastal State’s jurisdiction under Article 234 UNCLOS, as well as the relationship between Article 234 and the provisions of Part XII, need further clarification. The following discussion focuses on the provisions of Article 230(3), which imposes a requirement on States that “[i]n 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” [author’s italics]. The provision does not define the scope of such “recognized rights”. As the word “accused” suggests, this provision aims in particular to protect foreign nationals involved in criminal proceedings instituted by a coastal

 Thus, States in any event should examine whether enforcement measures are reasonable and do not amount to excessive restrictions on navigation: see, e.g., the discussion of the principle of necessity under international law accompanying footnote 139 above. See also Molenaar (1998), pp. 420–421. 305  See, however, Molenaar (1998), who points out at p. 468 that the “most likely explanation for the absence of a reference to Section 7 is a drafting error”. See also Oxman (1996) p. 204, who points out that the placement of this provision in a separate section is explained by a political and military compromise (between the United States, Canada and the Soviet Union) with respect to an article granting special competence to the coastal state for the control of pollution from ships navigating in ice-covered areas, and the desire of the States to make it clear that Article 234 was not in a section (7) from which Art. 233 excludes straits. Another objective was to ensure that this special competence was subject to the warship exclusion contained in Art. 236. As a result, little attention was paid either to the drafting of the provision itself or to its coherence with the other provisions of UNCLOS. 304

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State. In principle, Article 230(3) falls logically within the general context of Section 7, in particular, the non-discrimination requirement contained in Article 227 (“[i]n exercising their rights and performing their duties under this Part [XII], States shall not discriminate in form or in fact against vessels of any other State”) and the prohibition on the excessive exercise of jurisdiction (Article 232). Article 230(3) addresses more specifically the need to ensure “due process” for the individuals involved in criminal proceedings. The reference to the “recognised rights of the accused” is also encountered in non-maritime contexts.306 Article 230(3) requires, at a minimum, the non-discriminatory application of all rights of the accused under the domestic law of the forum state.307 However, the wording should be construed more broadly than as merely requiring foreigners to be treated in the same way as nationals being subjected to a criminal trial: it should be understood as including at least the rights protected under international law generally. As a matter of general principle, a criminal prosecution will inevitably have human rights implications and the contents of the “recognized rights of the accused” in ship-source pollution cases can be determined by reference to international instruments on human rights. This interpretation is confirmed by legal commentators, who suggest that, although the expression “recognised rights of the accused” is not the subject of any authoritative interpretation on the record, the provision should be understood as referring to the human rights of the persons involved in the proceedings, as guaranteed under international treaties and customary law. In addition to serving as a reminder to States where human rights or customary law norms are not directly enforced by the courts, the provision also requires courts in other States to comply with the relevant human rights requirements.308 Guidance on the specific rights protected by Article 230 may be found in international documents such as the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights (1966),

 E.g., 4 J. Int’l L & Int’l Rel. 2 (2008), 32 Fordham Int’l L.J. 202 (2008–2009), 6 UCLA J. Int’l L. & Foreign Aff. 404 (2001–2002). See also Article 12 of the Draft Convention on Jurisdiction with Respect to Crime, American Society of International Law, 1935), Am. Soc. of Int.Law, Vol. 29 (1935), pp. 439–442. This article prohibits in absentia trials, does not allow prosecuting States to prevent communication between the accused foreign national and the diplomatic officers of his State, and prohibits States from subjecting foreigners to unjust and inhumane treatment, or to excessive, cruel or unusual punishment etc. 307  As also required by Article 227 UNCLOS. See also Oxman (1998), p. 425. 308  Nordquist (1991), p. 370; Oxman (1998), p. 426. 306

194   Part Three as well as in other global and regional instruments concerning, in particular, the right to a fair trial and other rights of an accused person.309 The European Convention on Human Rights (the “ECHR”) may also be relevant.310 Indeed, several provisions of the ECHR appear to be particularly relevant to criminal proceedings for ship-source pollution. For example, the ECHR restricts the potential application of certain forms of punishment by protecting the right to life (Article 2 and Protocol no. 6 on the abolition of death penalty) and prohibiting torture (Article 3) and punishment without law (Article 7). In addition, the ECHR grants persons accused of criminal ship-source pollution offences certain procedural rights: the right to liberty and security (Article 5), the right to a fair trial (Article 6) and the right to appeal in criminal matters (Article 2 of Protocol no. 7). Article 1 of Protocol no. 12 also generally prohibits discrimination, in line with the UNCLOS provisions on non-discrimination. Provisions of the international instruments may also serve to preclude States from prosecuting criminal cases in the absence of the accused (in absentia), for example, where the vessel and (or) the crew have left the waters under the jurisdiction of the prosecuting State without having first been detained and convicted by that State. For example, Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR) explicitly establishes that all defendants have the right to be tried in [their] presence. Nonetheless, legal commentators generally agree that current international law generally does not clearly prohibit trials in absentia.311 The ECHR also deals with rights arising from the improper application of criminal law or proceedings. For example, Article 3 provides for compensation for wrongful conviction. Although Article 230 UNCLOS does not, in accordance with the balance of its provisions, apply directly, the crew will be able to rely on the provisions of human rights treaties and, in principle, avail themselves of an appeal to a court of human rights, as was the case in the two cases of Medvedyev v

 Ibid.  Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, done at Rome, on 4 November 1950. Entered into force on 3 September 1953). A discussion of the ECHR and other human rights instruments on their merits is outside the scope of this work. 311  Adopted at New York on 16 December 1966, entered into force on 23 March 1976. See also Trechsel and Summers (2005), p. 254, and Cassese (2008).The Human Rights Committee noted that this provision of the ICCPR “cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person’s absence”. Some constitutions prohibit trials in absentia, although many others do not. See Chentman (2010), p. 163 et seq. for a more conceptual discussion of in absentia trials. 309 310

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France312 and Mangouras v Spain (the Prestige),313 which were both reviewed by the European Court of Human Rights (“ECtHR”). In the Medvedyev case, the plaintiffs (the crew of the Winner, a Cambodian-flagged vessel) objected both to the seizure by France of the Winner on the high seas and to the detention of the crew (on suspicion of drug trafficking) as being contrary to both UNCLOS and the ECHR. The plaintiffs argued that France had violated Article 5 ECHR, which inter alia provides that 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so . . . 3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Although Cambodia had agreed to allow France to stop and inspect the Winner, its agreement did not extend to allowing the French authorities to detain the crew. The applicable provisions of UNCLOS also did not provide for any other measures than a visit on board the ship. Moreover, the Court established that the relevant domestic law of France contained no specific provision allowing a deprivation of liberty of the type and duration of that to which the applicants had been subjected. In addition, French domestic law did not, in the Court’s view, afford sufficient protection against arbitrary violations of the right to liberty as, inter alia, it did not require the arrested crew members to be provided with an opportunity to contact a lawyer or relative. Nor was the detention placed under the supervision of a judicial authority. Consequently, the Court concluded that the plaintiffs’ detention had violated Article 5(1) ECHR. However, the Court did not agree with the plaintiffs that the duration of their detention (13 days on board the detained vessel plus two or three days  Case of Medvedyev and Others v. France (Application No. 3394/03), ECtHR, Grand Chamber, Judgment of 29 March 2010. 313  Judgment by the ECtHR Chamber of 8 January 2009 in Case no. 12050/04. An unofficial English translation of the judgment is available at the website of the London P&I Club http://www.lsso.com/files/notices/Mangouras%20judgment.DOC. On the Prestige accident generally see Michinel (2007). 312

196   Part Three in police custody in Brest) contravened Article 5(3) ECHR. Although such a lapse of time did not, in principle, comply with the concept of “brought promptly” within the meaning of the provision, it could be justified generally on the grounds of “wholly exceptional circumstances”. In the Court’s view, such circumstances applied in the present case: given that the Winner had been boarded far from the French coast and had to be escorted to a port before the proceedings could continue, in practice it had been impossible to bring the detained crew members before the competent authority any sooner.314 The ECtHR also addressed the application of Article 5 ECHR (protecting the right to liberty and security) in the Prestige. Captain Mangouras (a Greek national) was detained in a Spanish prison for 83 days following the sinking of the oil tanker Prestige off the coast of Spain and was released following the deposit of a bank guarantee in the amount of EUR 3 million. The deposit was paid by the London Steamship Owners Mutual Insurance Association (the insurer of the owner of the Prestige), which covered the vessel’s public liability in the event of damage caused by pollution. The ECtHR established that the security was paid in pursuance of the contractual relationship between the owner and the insurer.315 Mangouras (the plaintiff) complained about the disproportionate nature of the amount of security fixed by the Spanish authorities for him to be released from detention prior to trial. In particular, he argued that the authorities did not take into account his personal situation (profession, income, assets, criminal record, etc.) before fixing the amount of security. He referred to Article 5(3) ECHR (quoted earlier in this section). The criteria under Spanish law for fixing security are set forth in Article 531 of the Spanish Code of Criminal Procedure and relate to the nature of the crime, the sanction envisaged, the legal interest protected, the social situation and criminal record of the accused and any other circumstance that may affect the likelihood that the accused will flee justice. The Spanish government, while acknowledging the requirement to take account of the plaintiff’s personal situation when fixing the amount of security, argued that the judge had established that there was a high flight risk. The Spanish view was, accordingly, that the amount of security was justified in order to achieve the main objective, i.e., ensuring that the plaintiff was at the disposal of the courts at the time of the proceedings.316

 Medvedyev, cited in footnote 312 above, p. 15 of the judgment.  Prestige, cited in footnote 313, para. 39. However, Mangouras himself pointed out that no agreement was signed with the owner to pay security (para. 32 of the judgment), otherwise security would have been paid immediately. 316  Ibid., para. 27. 314 315

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The ECtHR recalled in turn that the amount of security must be assessed principally “in relation to the interested party, his resources (. . .) and at the end of the day the confidence that one may have that the prospect of losing the security (. . .) in the event of non-appearance at the hearing will act as a brake on him which is sufficient to discount any desire to flee”.317 According to the court, the fundamental right to freedom guaranteed by Article 5 ECHR requires that the authorities must take care both in fixing the appropriate security and in deciding whether or not keep the person in detention.318 Furthermore, the ECtHR noted that the “main objective of fixing security, which was to guarantee the plaintiff’s presence at the proceedings, continues to this day to be preserved.”319 The ECtHR made the following arguments and rejected the complaint by the plaintiff: . . . the Court cannot be unaware of the growing and legitimate preoccupation that exists both at the European and international level with regard to crimes against the environment. It refers in this respect to the powers and obligations of States in terms of the fight against marine pollution and the unanimous desire of both the States and the European and international organisations to identify those responsible, to guarantee their presence at proceedings and to sanction them. [author’s italics]320 The Court considers that it is necessary to take account of the specific circumstances of the case in question, in other words the specific nature of the breaches committed in the context of a “cascade of responsibilities” specific to the field of the law of the sea and in particular attacks on the marine environment which distinguish it from other cases where it has been obliged to establish the duration of a temporary detention. On this subject the Court is of opinion that the seriousness of the facts of this case justified the concern of the domestic jurisdictions to establish the liabilities for the natural catastrophe and consequently it is reasonable that they wanted to guarantee the presence of the plaintiff at the proceedings by fixing a high security. [author’s italics]321

In addition, the ECtHR noted that Mangouras’ loss of liberty was shorter in duration than that experienced by detainees in other (not marine pollutionrelated) cases examined by the ECtHR.322 The ECtHR concluded . . . the Court considers that the national authorities have sufficiently justified the proportionate nature of the amount of the security to be paid by the plaintiff  Ibid., para. 37.  Ibid., para. 37. 319  Ibid., para. 40. 320  Ibid., para. 41. 321  Ibid., para. 42. 322  Ibid., para. 43. 317 318

198   Part Three and took his personal circumstances sufficiently into account, in particular his status as an employee of the owner who, in turn, was insured against this type of eventuality. It considers that the amount of the security, although high, was not disproportionate taking into account the legal interest protected, the seriousness of the crime in question and the catastrophic consequences from both an environmental and an economic point of view deriving from the spilling of the cargo. [author’s italics]323

Although in the Mangouras case the Court decided that the Spanish government had not violated the ECHR, the case does show that measures taken against the master and the crew of a vessel involved in a discharge offence not only are likely to violate their procedural rights under the relevant criminal law, but may also violate their rights under human rights instruments.324 The relevant provisions of the ECHR (where applicable) may be relied upon by individuals to defend their rights in cases of unlawful detention and where other enforcement measures are taken in violation of international law. Guidelines on Fair Treatment of Seafarers encourage coastal and port States to adopt a more lenient attitude to foreign crews involved in accidents at sea. The objective of the Guidelines is “to ensure that seafarers are treated fairly following a maritime accident and during any investigation and detention by public authorities and that detention is for no longer than necessary.”325 An important contribution of the Guidelines is that they encourage port and coastal States to minimize detention of seafarers, in particular, by using “all available means to preserve evidence to minimize the continuing need for the physical presence of any seafarer”, promptly conducting “interviews with seafarers, when done for a coastal State investigation following a maritime accident, taking into account their physical and mental condition resulting from the accident”, and by taking “steps to ensure that any court hearing, when seafarers are detained, takes place as expeditiously as possible”.326 Remarkably, the Guidelines define detention as “any restriction on the movement of seafarers by public authorities, imposed as a result of a maritime accident, including preventing them leaving the territory of a State other than the seafarer’s country of nationality or residence.”327 To reiterate, UNCLOS does not provide for a definition of detention, and States could, for

 Ibid., para. 41.  In addition, the rights provided in Article 230(3) UNCLOS should also apply to legal persons such as the shipowner or shipping company, as well as natural persons involved with the ship (owner, employees of the shipping company). 325  IMO/ILO Guidelines on Fair Treatment of Seafarers in the event of a maritime accident (27 April 2006), point 2. 326  Ibid., point 9. 327  Ibid., point 8. 323 324

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example, apply measures other than pre-trial incarceration which would still be (nearly as) burdensome for a foreign national. For example, house arrest (duty to stay in a hotel room) or prohibition on leaving the jurisdiction would probably result in similar subjective hardship. Whereas the Guidelines do not prohibit such measures altogether, they encourage States to consider non-custodial alternatives to pre-trial detention and to take “steps to ensure that seafarers, once interviewed or otherwise not required for a coastal State investigation following a maritime accident, are permitted to be re-embarked or repatriated without undue delay.”328 At the same time, the Guidelines “do not seek to interfere with any State’s domestic, criminal, or civil law processes” and leave it to the States to decide on the applicable sanctions and rigorousness of enforcement.329 The case of Prestige in the ECHRt also confirms that domestic courts will be afforded considerable deference when imposing detention and other measures on the crew of a delinquent foreign vessel. In addition, other provisions of UNCLOS provide for a similar, rather broad, interpretation of detention and release measures which may be applied by the coastal State in the event of a pollution accident. The next Part will address States’ domestic laws and practice with regard to the interpretation and application of international law and UNCLOS on jurisdiction over perpetrators of ship-source pollution.

 Ibid., point 9(15) and 9(13).  Ibid., point 4.

328 329

Part Four Criminal Jurisdiction over Perpetrators of Ship-Source Pollution in Selected National Systems and the European Union 8  Introduction The following discussion examines the rules and practices of the European Union (EU), Norway and Russia with regard to criminal liability for shipsource pollution violations and the implementation of international rules of jurisdiction in pollution cases brought in these legal systems. Norway, Russia and the EU are all parties to the United Nations Convention on the Law of the Sea (UNCLOS) and the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), as well as other key safety conventions adopted under auspices of the International Maritime Organization (IMO).1 Thus, as a starting point, Norway, Russia and the EU all apply the common discharge and other safety standards envisaged in these instruments. They also abide by the rules of international law concerning jurisdiction, as codified and developed by UNCLOS and its predecessors. As pointed out earlier in this study, international law does not prescribe in any great detail how States should shape their domestic criminal law rules and practices with regard to ship-source pollution violations. Generally, States are merely required to adopt adequately severe penalties. The problem of environmental pollution has increasingly been addressed by the application of criminal law measures, albeit mainly at the national level.2 However, even though the imposition of criminal penalties for environmental violations is nothing new for many States, including Norway and Russia, The EU is a party to UNCLOS, while the individual Member States are parties to MARPOL and other IMO treaties. 2 On international soft law on environmental crime see, e.g., Mégret (2011), Birnie, Boyle and Redgwell (2009). 1

202   Part Four the application of criminal law measures to environmental violations generally, and in shipping in particular, presents a number of contentious issues for national legislators. Is the criminalization of environmental offences an appropriate way to deal with the problem of pollution? On what standard of fault should criminal liability be based? That is, should only intentional and negligent conduct be criminalized or should strict liability apply? Who may be made subject to criminal sanctions for pollution? The master, the crew, representatives of the shipping company or any other persons or entities involved? If criminal liability is to be imposed, how should the international law implications be addressed? For example, how does one determine which State has jurisdiction to prohibit the conduct and prosecute offenders? National legislators have been sceptical in general about the criminalization of environmental violations. Generally, liability for pollution of the environment is dealt with by private law remedies designed to compensate victims for their losses and ensure the provision of financial restitution for damage caused. In addition, public law measures, namely, administrative fines and related measures (such as an obligation to ensure safety compliance in future) serve as sufficiently effective deterrents and discourage new pollution violations. Arguably, therefore, the imposition of criminal penalties only serves to increase costs and reduce legal certainty for industry players without bringing about any real improvement in environmental safety. Such considerations are especially relevant in international sectors such as shipping. It should be noted, however, that environmental criminal law first emerged in response to cases involving intentional and very serious pollution of the environment where there was little doubt as to the criminal nature of the unlawful activities. In such circumstances, the application of criminal law to protect the environment was considered logical and justifiable by policy makers.3 In the shipping sector, intentional discharges in violation of international standards take place on a regular basis. Two rather common examples of unlawful practices are the discharging of oily bilge waste into the sea and the washing of cargo tanks at sea prior to taking on new cargo.4 Since such violations are, as a rule, repeated multiple times, they cause more serious overall damage to the marine environment than even an accidental spill from an oil tanker. Accordingly they should attract sufficiently severe penalties.

On environmental crime generally see, e.g., Brickey (2008), White (2008). On criminal liability for marine pollution see also Faure, p. 161 et seq., in Faure, Lixin and Hongjun (eds) (2010). 4 See, e.g., descriptions of US cases by Dickman (1999–2000). 3

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Compared to a regime that can be enforced through the application of criminal-law sanctions, a regime that is limited to administrative and civil remedies is weaker in certain important respects. First, the application of criminal law attaches a moral stigma to the prohibited conduct. There can be no doubt that non-compliance is not merely a trivial matter, but a crime.5 Second, criminal law provides for more stringent enforcement measures (e.g., pre-trial detention) and a broader scale of penalties (e.g., imprisonment) that may be imposed on the offender.6 The use of purely monetary sanctions in a sector such as shipping may well result in a situation where the cost of non-compliance is considerably lower than the cost of compliance. In such cases the deterrent effect of administrative fines will be minimal, with shipowners and operators very likely viewing such fines merely as a cost of doing business.7 In light of the civil liability “channelling” rules (which exclude other parties than the registered shipowner from liability) and the limitation of liability rules protecting the shipowner,8 it is rather uncertain whether an enforcement regime that makes no provision whatsoever for the imposition of criminal penalties for pollution violations can ever act as a sufficient deterrent for shipping industry actors. Third, a broader range of persons—not only the registered shipowner, as is generally the case under a civil liability regime—may be made subject to criminal penalties for pollution. There are considerable variations among States with respect to the content and structure of their substantive criminal liability rules. These variations can only be presented in this study to a limited extent. Generally it is clear that States view criminal enforcement in relation to environmental violations in shipping as an exceptional means for use only in the most serious cases. In practice it is remarkable how many prosecutions concern not so much intentional spills as accidental pollution resulting from casualties at sea caused by, for example, the grounding or structural failure of the ship.9 The use of criminal enforcement measures in such cases is not in itself surprising when one considers the potentially drastic environmental consequences of an accident at sea, especially one involving a large oil tanker. In any case, the imposition of criminal sanctions in response to accidents such as the Erika (France, 1999) or the Full City (Norway, 2008) is probably seen See, e.g., Brickey (1996) at p. 506; Cohen (1991–1992), pp. 1059–1060. Birnie, Boyle and Redgwell (2009), p. 329. 7 See generally Posner (1985). See also Cohen (1991–1992), p. 1061. 8 On civil liability for oil pollution damage generally see, e.g., Birnie, Boyle and Redgwell (2009), pp. 434–441; Tan (2006), p. 288 et seq. 9 Especially in European countries, there appears to be a focus on accidental pollution rather than on intentional spills: cf. practice in the USA, e.g., Dickman (1999–2000). 5 6

204   Part Four by criminal law enforcers as a means of exacting retribution for the damage caused rather than simply as a deterrent for future perpetrators. Another factor here is that intentional spills are more difficult for the coastal authorities to detect than accidental pollution. Intentional polluters are likely to attempt to conceal their activities by discharging the polluting substances far from the shore, tampering with the ship’s equipment, and falsifying the ship’s record books. The State actually affected by the pollution may also experience practical difficulties in interdicting an intentional offender, especially in cases when the vessel is only transiting its waters without entering any of its ports. The focus of criminal law enforcers on accidental pollution is problematic for a number of reasons. First, the assessment of the conduct which caused the accidental pollution will in many cases be strongly influenced by the extent of the damage. However, the extent of the damage actually caused is not in itself is a sufficient basis for determining culpability. For example, the amount of harmful substances discharged intentionally (at least if each spill is assessed individually) is usually considerably smaller than the amount resulting from an accident. This does not mean, however, that intentional pollution should be viewed as less serious than non-intentional pollution. In all criminal law systems, intentional crimes are considered to be the most serious form of offence. Second, the extent of the damage caused by an incident may be difficult to assess in relation to a fixed threshold. A relatively small spill may cause significant damage if it occurs in an area that is particularly fragile and in need of special protection (e.g., natural parks, Arctic waters etc.). In addition, focusing on the actual harm caused by the spill is problematic in cases where the pollution does not affect the coastal waters of any State or does so only to an insignificant extent. This would be the case where a pollution violation has taken place on the high seas and has harmed the marine environment generally, rather than any State’s waters or coastline in particular. Thus, in cases of accidental pollution, the seriousness of the violation should be determined by a detailed investigation of the degree of fault on the part of the person or persons involved. This would not make the evaluation of the harm to the environment totally irrelevant to the investigation, as it could well be a factor to consider when determining the degree of fault of the person(s) responsible for the pollution. The extent of harm to the environment will also be relevant for deciding the type and level of any criminal sanctions to be imposed (assuming the court upholds the charges). Fault is more difficult to assess in cases where pollution results from an accident or a maritime casualty than in cases where intentional discharges are committed in the course of the day-to-day operation of the ship. In most cases, accidental pollution will be the result of “human error” (e.g., an

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omission by the master or a crew member).10 For example, the master may have misjudged the sea or weather conditions, made a navigational error or failed to implement certain measures following an accident that might have prevented the ensuing pollution. Generally, national law-makers have criminalized negligent environmental violations with the intention of ensuring that the persons responsible for the safe operation of vessels exercise sufficient care to avoid pollution. In some cases, of course, pollution will result from a maritime casualty caused by reasons other than criminal conduct on the part of the master and the crew.11 It is important to note in this respect that MARPOL makes a special exception from liability for discharges of oil and liquid noxious substances from ships where such discharges result from damage to the ship or its equipment, so long as all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge in order to prevent or minimize the discharge. This exception does not apply if the shipowner or the master acted either with intent to cause damage or recklessly and with knowledge that damage would probably result. Unfortunately, as was well illustrated by the Erika accident, the underlying causes of many intentional and negligent pollution incidents are rooted in the general culture of shipping companies and other entities responsible for ship operations. Companies can save money by discharging oily waste into the sea in order to avoid using reception facilities in ports. Poor manning, deficient or absent safety management systems and improper technical maintenance may lead to disaster. This raises the question whether sanctions, including criminal penalties, should also target serious omissions affecting the technical and operational safety of ships. The threat of criminal penalties may act as an effective deterrent not only for the master and crew but also for responsible persons onshore, e.g., employees and owners of shipping companies. Criminal penalties would constitute a cost of doing business that could not be passed on to the consumer. In addition, the prospect of criminal liability might encourage the exercise of sufficient diligence with respect to the overall safety of the ship.12 As pointed out at the beginning of this study, criminal law and policy are essentially national matters and remain largely within the competence of individual States. This explains the differences that exist in States’ domestic

See, e.g., Kristiansen (2005). E.g., where an accident is caused by external circumstances or by omissions by the coastal authorities. 12 Brickey (1996–1997), p. 506. 10 11

206   Part Four substantive and procedural criminal rules. There are also considerable variations between States with regard to the types and levels of penalties that are imposed for comparable infringements.13 In an international business sector such as shipping, significant variations between States with respect to national provisions on criminal liability and the levels of fines will make it more difficult to develop an effective criminal liability regime. The effects of this are two-fold. First, there is less legal certainty for industry participants, especially the persons most likely to be directly affected by enforcement measures, i.e., the master and the crew. Such persons may find themselves detained in a foreign jurisdiction pending an investigation and proceedings, with their release conditional on the posting of sufficient financial security by the shipowner (with the consent of the coastal State’s authorities or the court). Even if the master and crew are eventually acquitted, or the proceedings are transferred to the flag State, they will often have spent a considerable time under arrest in a foreign country. If found guilty, the master and crew members are also likely to face non-monetary penalties (i.e., imprisonment). For these reasons, the application of criminal penalties in cases of accidental pollution has often been criticized as excessively stringent and repressive.14 Second, variations between national rules may encourage shipowners and masters to commit discharge offences strategically, i.e., only in or near the waters of States where the legal and economic consequences are assessed as least damaging. Similar decisions based on an evaluation of financial risk may also be taken with regard to the port States at which the vessel will call.15 The EU has attempted to introduce a harmonized sanctions regime by adopting directives obliging the Member States to introduce and apply criminal sanctions for ship-source pollution. The two non-Member States discussed in this book, Norway (which is bound by the directives by virtue of the EEA Agreement) and Russia, also condemn pollution of the environment and envisage criminal liability for serious environmental violations, including pollution of the marine environment by ships.

In Europe, for example, the levels of fines vary dramatically, according to a report published at the website of the Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances, 1983 (Bonn Agreement, http://www.bonnagreement .org). Fines imposed by member States of the Bonn Agreement range on a scale of 1 to 10 for the same type of pollution offence. 14 See, e.g., Gold (2006). The IMO has also been critical about the criminalization of seafarers: see, e.g., Mitropolous (2004). 15 These concerns were expressed at the Workshop on Evidence and Law Enforcement in the Event of Pollution Following the Release of Oil by Vessels held in Brest on 10–12 December 1997 under the auspices of the Bonn Agreement. 13

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The harmonization of national rules on criminal liability is not the only pre-condition for the establishment of a comprehensive sanctions regime to deter future perpetrators. States must also exercise their enforcement jurisdiction both effectively and consistently. As pointed out earlier, however, Articles 220 and 218 UNCLOS do not impose a positive obligation on coastal and port States to investigate pollution violations and institute proceedings. On the contrary, the exercise of jurisdiction to impose penalties for ship-source pollution is mainly a matter of discretion for the State that has such jurisdiction under international law. In other words, the State in question—be it the flag, port or coastal State, or, as the case may be, the State of nationality—may choose not to exercise its authority to punish the perpetrator of pollution. The maritime environments of the coastal States of the EU, as well as those of Norway and Russia, have all been seriously affected by maritime accidents. In future, pollution hazards in these States’ coastal waters will only increase. Increasing numbers of oil and gas carriers are transiting Arctic waters as efforts intensify to extract natural resources from the Barents Sea. Particular concerns about the environmental safety of ships in this region increase the urgency of adopting effective control and enforcement mechanisms to prevent and discourage pollution violations at sea.16 In this context, it is worth noting that the States discussed in this study are well aware that measures aimed at preventing pollution from ships at sea cannot rely exclusively on domestic control and enforcement but need to be undertaken jointly by neighbouring States. Thus, in addition to joint EU measures on maritime safety, European States are cooperating within the framework of several regional agreements on safety at sea and oil pollution preparedness.17 Norway and Russia have also established bilateral agreements and cooperation frameworks on oil pollution prevention in the Barents Sea.18 The existing cooperation frameworks between Norway and Russia do not, however, establish a comprehensive regime to resolve questions pertaining to criminal sanctions for ship-source pollution and the allocation of jurisdiction between the States to impose penalties on perpetrators. So far, cooperation in criminal matters has generally been limited to bilateral and regional agreements on legal assistance and transfer of proceedings between

See generally Bambulyak and Frantzen (2011) on oil transport from the Russian part of the Barents region. 17 E.g., the Bonn Agreement, Helsinki commission (Helcom) (Russia participates in the latter). 18 For a more detailed discussion see, e.g., Pozdnakova (2009). 16

208   Part Four Russia, Norway and European States.19 The EU has also adopted legislation to this end.20 These instruments do not, however, impose any restrictions or conditions on individual States’ sovereignty with regard to the exercise of criminal jurisdiction over the perpetrators of ship-source pollution (or other crimes). Thus, questions of jurisdiction between Norway, Russia and the EU Member States will be resolved according to UNCLOS and international law generally. It is important to note here that the criminalization of ship-source pollution and the prosecution of perpetrators may have implications for foreign relations. This raises complex issues for national legislators and law enforcers. From a flag State’s perspective, applying stringent penalties to its own ships and crews is impractical as it may reduce the attractiveness of its flag compared to other flag States with more lax enforcement policies. However, in contrast to the situation in Norway, which has a relatively large fleet, the EU and Russian fleets are generally out-flagged to third States. In addition, Norway, the coastal EU Member States and Russia all have significant “roles” as coastal and port States. Coastal and port States will also have to take account of any interests that may be affected by the implementation of assertive enforcement measures against foreign-flagged ships. Such measures may have negative consequences for regional trade, as well as possible implications for the State’s own merchant fleet and seamen in foreign jurisdictions. In addition, a State that implements excessive enforcement measures or that applies its domestic criminal rules to pollution violations committed by a foreign vessel outside its territorial sea may also violate international law by encroaching upon the flag State’s sovereignty. At the same time, by virtue of their long contiguous coastlines, the EU Member States, Norway and Russia have a unique opportunity to supplement existing cooperation on maritime safety by establishing and developing an effective sanctions regime for ship-source pollution violations. One way of achieving this would be for all the States involved to avail themselves more

E.g., Agreement between the Government of the Kingdom of Norway and the Government of the Russian Federation on co-operation in combating crime (done at Moscow on 26 May 1998, entered into force on 30 September 1999); European Convention on Mutual Assistance in Criminal Matters (Council of Europe, Strasbourg, 20 April 1959), European Treaty Series—No. 30; European Convention on the Transfer of Proceedings in Criminal Matters (Council of Europe, Strasbourg, 15 May 1972), European Treaty series—No. 73. 20 Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ [2000] C 197/01. 19

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actively of the mechanisms envisaged by UNCLOS, in particular, Part XII and Articles 218 and 220 thereof. In the author’s opinion, the above-mentioned policy considerations will be taken into account by the authorities of the EU coastal States, of Norway and of Russia when determining the appropriate response to a pollution incident involving a foreign vessel. Consequently it is uncertain whether these countries will be willing to go beyond what is absolutely required under UNCLOS and the IMO treaties with respect to the enforcement of environmental rules in shipping, i.e., whether they will make assertive efforts to prosecute shipsource pollution violations committed by foreign-flagged perpetrators. The following discussion sheds more light on the relevant substantive criminal law provisions in Norway and Russia, which are examined in order to determine the nature of and criteria for criminal liability for ship-source pollution in these countries. The discussion of EU rules focuses on the relevant secondary legal acts adopted by the EU with regard to sanctions for ship-source pollution. Although the laws of EU Member States are not examined individually, some practice is referred to (where available). The discussion also clarifies and analyses the selected systems’ national rules governing criminal jurisdiction over the perpetrators of pollution. In particular, the author attempts to clarify whether any of these national systems envisage extraterritorial reach for their criminal liability provisions in cases involving ship-source pollution. The discussion below begins by examining the EU rules that harmonize Member States’ laws on penalties for ship-source pollution (Chapter 9). The author then proceeds to examine Norwegian and Russian rules on criminal liability and jurisdiction (in Chapters 10 and 11 respectively).

9  The European Union 9.1  Introduction This chapter examines EU measures to harmonize criminal sanctions for shipsource pollution. The discussion includes an analysis of the relevant rules in the light of international law, in particular, UNCLOS and MARPOL. The EU has significant power to regulate the national laws and policies of the Member States with respect to maritime safety and the protection of the environment.21 To this end the EU has adopted a wide range of secondary legal acts in the shape of regulations and directives aimed at enhancing EU competence in matters concerning the common transport policy is envisaged in Title VI “Transport” of the Treaty on the Functioning of the European Union. Article 100 of Title VI

21

210   Part Four safety compliance in shipping and encouraging more assertive enforcement by EU port and coastal States.22 This policy has recently culminated in the directives on penalties for ship-source pollution: Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements23 (the “2005 Directive” as amended by Directive 2009/123/EC (the “2009 Directive”). The latter directive specifically requires the criminalization of prohibited discharges.24 Prior to the 2009 Directive, the types of sanctions applicable for shipsource pollution violations were set forth in Council Framework Decision 2005/667/JH to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.25 This was necessitated by restrictions on legislative competences which followed the traditional distinction between the European Community’s “first pillar” (EC) competence and “third pillar” (EU) competence. Although the distinction between EC and EU policies has now been abandoned following the Lisbon Treaty (2007), the latter treaty did not resolve all questions pertaining to the division of competences between the EU and its Member States.26 Within the traditional three-pillar structure, maritime transport regulation was generally harmonized within the framework of the “first pillar”, i.e.,

(ex-Article 80 of the Treaty establishing the European Community) lays down the procedure for adopting rules on sea transport. 22 On EU maritime safety measures generally see, e.g., Ringbom (2008). 23 OJ [2005] L 255/11. The amended title of Directive 2005/35 is Directive on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences. On the development of the EU criminal-sanctions regime and the political context of the Directives see also Ringbom (2008), p. 317 et seq., Tan (2010). 24 Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements, OJ [2009] L 280/52. The latter directive had to be transposed into the domestic laws of Member States and the States of the European Economic Area (EEA) by November 2010. 25 Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminallaw framework for the enforcement of the law against ship-source pollution, OJ [2005] L 255/164, annulled. 26 Treaty of Lisbon, amending the Treaty on European Union and the Treaty establishing the European Community, signed in Lisbon, 13 December 2007, in force as of 1st December 2009. Accordingly the European “Community” has been abolished, because the distinction between the Community and the Union is no longer relevant. The EU is now a single organisation founded on two treaties: the Treaty on the European Union (the “EU Treaty”) and the Treaty on the Functioning of the European Union (the “TFEU”). According to Article 1(2) TFEU, these two Treaties have the same legal value. On the Lisbon Treaty generally see, e.g., Craig and de Búrca (2011), p. 24 et seq.

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the EC Treaty,27 which contained Title V “Transport” dealing with matters relating to the common transport policy of the EC. In particular, this policy included measures relating to transport safety.28 Criminal law measures were harmonized under cooperation established by the “third pillar”, i.e., the EU Treaty.29 The 2005 Directive, which was initially adopted on the basis of Article 80(2) EC (common transport policy), did not contain any provisions expressly obliging Member States to prosecute discharge violations by means of criminal law. Accordingly the Council adopted, on the basis of the EU Treaty (the “third pillar”), the Framework Decision 2005/667/JHA. This supplemented the 2005 Directive by providing specifically for criminal sanctions for shipsource pollution violations to be implemented by the Member States.30 Subsequently, however, the European Court of Justice (ECJ, now the Court of Justice of the European Union) ruled that the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities was essential for combating serious environmental crime both generally and in the maritime transport sector in particular.31 The ECJ also confirmed that the EC could require the Member States to introduce such penalties in order to ensure that the rules on maritime safety were fully effective, even though generally neither criminal law nor the rules of criminal procedure fell within the Community’s competence.32 By virtue of this ruling, the ECJ accepted that the Community had its own legislative competence within the framework of the common transport policy to adopt criminal law measures in order to pursue the objectives of the 2005 Directive. Since environmental protection was one of the essential objectives of the Community (Article 6 EC), which had to ‘be integrated into the definition and implementation of . . . Community policies and activities’, such protection had to be regarded as an objective which also formed part of the common transport policy.33 Thus, the Community could, on the basis

Consolidated version of the EC Treaty, OJ [1997] C 340. Article 71(1)(c) EC. Currently included in the Lisbon Treaty. 29 Consolidated version of the EU Treaty, OJ [2002] C 325. 30 Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminallaw framework for the enforcement of the law against ship-source pollution, OJ [2005] L 255/164, annulled. 31 Case C-176/03 Commission v. Council, ECR [2005] I-7879, concerning Directive on the protection of the Environment through Criminal Law. 32 Judgment of the ECJ in Case C-440/05 Commission v. Council, ECR [2007] I-9097, para. 66. 33 Ibid., para. 60. 27 28

212   Part Four of Article 80(2) EC, exercise the powers conferred on it by that provision to promote environmental protection and criminalize ship-source pollution.34 The impetus for imposing an obligation on Member States to prescribe criminal sanctions for discharge violations has been the lack of any effective international regime to prevent unlawful discharges from ships. Instead, the focus of existing international rules has been on securing financial compensation for victims of oil pollution, rather than on penalising offenders. In addition, the rules on shipowners’ limitation of liability and the “channelling” rule that attributes liability exclusively to the registered owner have deprived the civil liability regime of any deterrent effect. In the Commission’s view, an approach based exclusively on civil remedies did little to dissuade those involved in the shipping of oil and other polluting substances by sea from engaging in negligent practices and was therefore “of limited value for helping to prevent accidents from happening in the first place”.35 The Commission believed that measures of a penal nature and, in particular, measures criminalizing illegal discharges, would achieve better preventive effects and demonstrate social disapproval of a qualitatively different nature than civil-law compensation mechanisms or administrative measures.36 As a result, following the ECJ’s judgment in Commission v. Council (Case C-440/05), the Framework Decision was annulled and the 2009 Directive adopted. This directive amended the 2005 Directive and specifically required Member States to introduce criminal sanctions for ship-source pollution violations as defined in the 2005 Directive. (The 2005 and 2009 Directives are hereinafter referred to cumulatively as the “Directives”, unless a more specific reference is necessary.)37 Article 1(1) of the 2005 Directive (as amended in 2009) provides that The purpose of this Directive is to incorporate international standards for shipsource pollution into Community law and to ensure that persons responsible for discharges of polluting substances are subject to adequate penalties, including

Judgment of the ECJ in Case C-440/05 Commission v. Council, op. cit., para. 60. COM (2003) 92 final, “Proposal for a Directive of the European Parliament and of the Council on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences”, p. 6. 36 Ibid., p. 5. See also Ringbom (2008) p. 320 on the reasons why the international civil liability regime was viewed as unsatisfactory. 37 Directive 2005/35 on ship-source pollution and on the introduction of penalties for infringements, OJ 2005 L 255/11; amended by Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements, OJ [2009] L 280/52. The latter directive had to be transposed into the domestic laws of Member States and EFTA States by November 2010. 34 35

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   213 criminal penalties, in order to improve maritime safety and to enhance protection of the marine environment from pollution by ships.

Article 2 of the Directives defines various terms used therein, while Article 3 determines the Directives’ geographical scope. Article 4 defines the types of infringements that are subject to penalties, while Article 5 sets forth exceptions to the prohibition on pollution. Article 5a of the 2009 Directive defines the meaning of “criminal offence”, while Article 5c adds that any act of inciting or aiding and abetting an offence mentioned in Article 5a will also be punishable as a criminal offence. Articles 6 and 7 address, respectively, port and coastal State enforcement. Article 8 sets forth penalties for ship-source pollution. The 2005 wording was amended by the 2009 Directive, which added provisions on penalties for natural persons (Article 8a), the liability of legal persons (Article 8b), and penalties for legal persons (Article 8c). Article 9 requires Member States to comply with international law and apply the provisions of the Directives without discriminating against foreign ships. Lastly, Articles 10–12 of the 2005 Directive impose additional obligations on Member States in respect of matters such as cooperation and reporting, as well as various other provisions relating to the implementation of the Directive that are not examined in this monograph. The following discussion focuses on provisions of the Directives regulating sanctions for ship-source pollution violations. As will be examined in more detail later in this Chapter, the Directives generally prohibit ship-source discharges that are committed with intent, recklessly or as the result of serious negligence. Minor but repeated discharges come within the scope of this prohibition (unless no deterioration of water quality was caused). Although the Directives do not rule out the application of criminal sanctions for ordinary negligence, they are mainly intended to criminalize ship-source pollution that is either caused deliberately or by serious (gross) negligence. In addition, any intentional act of inciting or of aiding and abetting a pollution violation covered by the Directives shall be punishable as a criminal offence under the domestic laws of the Member States.38 The definition of a “discharge” is based on Article 2 MARPOL and “polluting substances” are defined as those addressed in Annexes I and II of MARPOL.39 The 2005 Directive also has an Annex that summarizes

Articles 4 and 5 of the 2005 Directive. The original 2005 wording of Article 4 was amended in 2009. 39 Thus certain polluting substances that are addressed in other Annexes to MARPOL are excluded from the scope of the Directives. For more detail on the provisions of MARPOL see Section 2.4 above. 38

214   Part Four the provisions of Annex I MARPOL (oil) and Annex II (liquid noxious substances). As the Directives refer only to “discharges” as defined in MARPOL, they do not provide for criminal penalties for serious safety violations that have not yet resulted in pollution. It is up to the individual Member States to decide whether such violations should be criminalized. In the light of accidents such as the Erika and the Prestige, it may be reasonable to extend criminal liability to serious omissions or failures that have the potential to cause major pollution. The Directives only impose minimum obligations on Member States. In principle, there is nothing to prevent Member States from adopting more stringent measures to counter ship-source pollution, so long as such measures comply with international law.40 As was clarified earlier in this work, UNCLOS and MARPOL merely encourage States to adopt adequate penalties for pollution violations. Neither treaty specifies the nature of such penalties. Accordingly, merely by requiring the Member States to introduce criminal sanctions for discharge violations, the Directives have already gone further than the international treaties. However, as was also clarified earlier, the international rules do not generally prohibit States from criminalizing pollution violations, merely imposing certain limitations in this respect. Limitations on States’ criminal jurisdiction over foreign vessels mainly concern the geographical reach of States’ enforcement jurisdiction. With respect to prescriptive jurisdiction, an important limitation concerns non-flag States’ authority to apply national discharge standards and other safety obligations that deviate from internationally recognized standards, inter alia those envisaged in MARPOL. At the same time, it is logical to assume that EU law should comply with international law generally and UNCLOS in particular. The EU is a party to UNCLOS,41 which accordingly forms part of the EC legal order and, consequently, has primacy over secondary legislation such as directives.42 For national legislators within the Member States, this means, in principle, that as long as Member States “respect commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within

Article 1(2) and Article 9 of the 2005 Directive. Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof, OJ [1998] L 179, p 1. 42 See Intertanko, para. 42; See also Case C-459/03 Commission v Ireland [2006] ECR I-4635 (MOX Plant). See also Ringbom (2008) for a more nuanced discussion of UNCLOS in the EC legal order. 40 41

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the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of that agreement”.43 However, in the Intertanko case examined in the following section, the ECJ declined to rule on the compatibility of the Directives with UNCLOS and MARPOL. Moreover, on another occasion (Commission v. Council), the ECJ had ruled that harmonisation of the types and levels of criminal penalties to be applied for particular violations did not fall within the Community’s sphere of competence.44 Thus, while allowing the adoption of provisions relating to criminal liability generally, the ECJ denied the Community the power to adopt provisions relating to types and levels of criminal penalties.45 Accordingly, the Directives do not contain provisions to this end and the Member States have so far retained the competence to decide on the types and levels of criminal penalties for ship-source discharge violations. The discussion in the following section examines those provisions of the Directives that regulate the scope and content of substantive provisions on criminal liability, such as the standard of fault and the range of persons who may be subject to sanctions. The potential for conflict between, on the one hand, some of the provisions of the Directives and the implementing domestic measures of the Member States and, on the other hand, the law of the sea, is illustrated by Case C-308/06 Intertanko v. Secretary of State, which is examined in more detail below. 9.2  EU Rules on Criminal Liability for Ship-Source Pollution in the Light of MARPOL 9.2.1  Overview As already discussed, MARPOL imposes a general prohibition on all discharges that deviate from the standards set forth in the Annexes to the treaty. The respective Annexes do however set forth some limited exceptions to this general prohibition. Thus discharges of oil and noxious liquid substances (Annexes I and II) are permitted in three situations: 1) where necessary to secure the safety of a ship or save life at sea;46 2) where approved by both the

MOX Plant, op. cit., para. 85; Case C-13/00 Commission v Ireland [2002] ECR I-2943, para. 15. See also generally Boelart-Suominen (2008), p. 668. 44 Judgment of the ECJ in Case C-440/05 Commission v. Council, cited in footnote 32 above, para. 70. 45 Ibid., paras 70–71. Yet the Framework Decision was annulled in its entirety due to the inextricable links between its provisions. 46 Regulation 11(1)(a) of Annex I (oil) corresponding to Regulation 6(1)(a) of Annex II on noxious liquid substances. 43

216   Part Four flag State and any Government in whose jurisdiction it is contemplated the discharge will occur, in order to combat a specific pollution incident in order to minimize the damage from pollution;47 and 3) where the discharges into the sea of oil or oily mixture result from damage to a ship or its equipment so long as: i) “all reasonable precautions” were taken “after the occurrence of the damage or discovery of the discharge” for the purposes of preventing or minimizing the discharge; and (cumulatively) ii) the owner or the master did not act either with intent to cause damage, or recklessly and with knowledge that damage would probably result.48 The latter exception apart, MARPOL does not address the degree of fault involved in pollution offences, instead attempting to combat all discharges, whether accidental, negligent, or (in particular) intentional. The Directives’ provisions on criminal liability for accidental and negligent pollution have proved controversial because of their divergence from the MARPOL provisions in respect of exceptions from liability. Thus, Article 4(1) of the 2005 Directive (as amended in 2009)49 provides Member States shall ensure that ship-source discharges of polluting substances into any of the areas referred to in Article 3(1) are regarded as infringements if committed with intent, recklessly or by serious negligence.

The “areas referred to in Article 3(1)” include all maritime zones, i.e., internal waters and ports, territorial seas, straits used for international navigation, EEZs and the high seas. Article 5 of the Directive consists of two paragraphs based on the exceptions provided for in Regulation 11 of Annex I and Regulation 6 of Annex II to MARPOL. According to the first paragraph of Article 5, A discharge of polluting substances into any of the areas referred to in Article 3(1) shall not be regarded as an infringement if it satisfies the conditions set out in Annex I, Regulations 9, 10, 11(a) or 11(c) or in Annex II, Regulations 5, 6(a) or 6(c) of 73/78.

Furthermore, the second paragraph of Article 5 provides A discharge of polluting substances into the areas referred to in Article 3(1)(c), (d) and (e) [straits used for international navigation, EEZs and the high seas— A.P.] shall not be regarded as an infringement for the owner, the master or

Regulation 11(1)(c) of Annex I (oil) corresponding to Regulation 6(1)(c) of Annex II on noxious liquid substances. 48 Regulation 11(1)(b) of Annex I (oil) corresponding to Regulation 6(1)(b) of Annex II on noxious liquid substances. 49 The wording essentially repeats that of the original provision, but the reference to the annulled Framework Decision has been deleted. 47

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   217 the crew when acting under the master’s responsibility if it satisfies the conditions set out in Annex I, Regulation 11(b) or in Annex II, Regulation 6(b) of Marpol 73/78.50

As will be examined in more detail below, the definition of an “infringement” in Article 4(1) and the wording of the exceptions provided for in Article 5 seem to create a more stringent liability regime than that expressly envisaged in MARPOL 73/78. This caused the compatibility of the 2005 Directive with international law (i.e., UNCLOS and MARPOL) to be questioned in Intertanko and Others v. Secretary of State for Transport.51 In Intertanko, the High Court of Justice (Queen’s Bench Division) made a referral for a preliminary ruling to the ECJ concerning the validity of the 2005 Directive in the light of international law. The plaintiffs were a group of organisations representing a substantial proportion the maritime shipping industry.52 The disputed provisions in Intertanko were Articles 4 and 5 of the (original) 2005 Directive. Four arguments were put before the UK court by Intertanko and the other plaintiffs. The first concerned the EU’s authority under the law of the sea to adopt legislative measures deviating from international standards (i.e., MARPOL) with respect to foreign vessels in straits used for international navigation, in EEZs and on the high seas. In these maritime zones, could the application of the MARPOL exception legitimately be limited to the owner, the master and the crew? The second and third arguments concerned the EU’s right to exercise, with respect to the territorial sea, a prescriptive jurisdiction that exceeded the scope of the MARPOL provisions. Would criminalization of pollution in the territorial sea caused by serious negligence comply with the right of innocent passage? Was it legitimate wholly to exclude the application, in the territorial sea, of the rule established in MARPOL excusing, subject to the fulfilment of certain conditions, accidental pollution? The fourth argument alleged that the phrase “serious negligence” in Article 4 of the 2005 Directive infringed the principle of legal certainty, rendering Article 4 invalid to that extent.

The amended version refers to the exception in cases where the discharge satisfies the conditions set out in Annex I Regulations 15, 34, 4.1 or 4.3 or in Annex II, Regulations 13, 3.1.1 or 3.1.3 of MARPOL 73/78. 51 The Queen on the application of the International Association of Independent Tanker Owners (Intertanko) and others v. Secretary of State for Transport, [2006] EWHC 1577. 52 Intertanko’s members (shipowners) represented around 80% of the world tanker fleet, according to Intertanko (http://www.intertanko.com). Other plaintiffs were the International Association of Dry Cargo Shipowners (Intercargo), the Greek Shipping Co-operation Committee, Lloyd’s Register and the International Salvage Union. 50

218   Part Four The discussion below examines in more detail the reasoning of the ECJ and the Advocate General in Intertanko and analyzes the questions raised in this case. Section 9.2.2 compares the concept of negligence as set forth in the Directives with the concept as set forth in the relevant MARPOL provisions. Section 9.2.3 focuses on the range of persons liable to penalties in the light of the Directives and of MARPOL. The concept of negligence as set forth in the Directives in the light of international law rules of jurisdiction is examined later in Section 9.3. 9.2.2  Definitions of Negligence in the Directives and in MARPOL The wording of Articles 4 and 5 of the 2005 Directive (also as amended in 2009) does not correspond to that of MARPOL. Thus, Article 4 of the 2005 Directive refers to pollution caused by “intent, recklessly or by serious negligence”. There is no reference to any requirement for “knowledge that damage would probably result”. Article 5(1) criminalizes intentional, reckless and seriously negligent pollution in the territorial sea, even if it comes within the scope of the MARPOL exception mentioned above.53 Article 5(1) also makes no reference to Regulation 11(b) of Annex I and the corresponding provisions of Regulation 6 of Annex II of MARPOL, thereby narrowing the scope of the exception to cases of damage to the ship and its equipment etc. In addition, Article 5(1) criminalizes discharges in the territorial sea that would otherwise generally be covered by the MARPOL exception. Furthermore, according to Article 5(2) of the 2005 Directive (also as amended in 2009), in the case of pollution in the straits used for international navigation, EEZ or on the high seas, only the owner, the master and the crew (but no other persons or entities associated with the ship or the accident) will be exempted from liability for pollution resulting from damage to the ship or its equipment. The distinction between the wording of the exceptions set forth in MARPOL,54 on the one hand, and the wording of Articles 4 and 5 of the 2005 Directive, on the other, raises doubts as to the compatibility of Articles 4 and 5 with international law in two respects. First, States may lack jurisdiction under international law to impose requirements on foreign ships that exceed international standards (i.e., MARPOL). Second, the relevant provisions of Regulation 11(1)(b) of Annex I (oil) corresponding to Regulation 6(1)(b) of Annex II on noxious liquid substances. Accordingly, under the Directive the only discharges that are permitted in all maritime zones are: 1) those necessary to secure the safety of the ship or to save life at sea; and 2) subject to the approval of the flag State and the coastal State concerned, those necessary for the purposes of combating specific pollution incidents in order to minimise the resulting pollution damage. 54 See text accompanied by footnote 48 above. 53

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   219

the Directives may result in a violation of MARPOL as such if the States parties adopt national discharge and liability rules that deviate from the MARPOL provisions. Although these two questions are closely related, the former concerns, which relate to the Directives’ compliance with international rules on jurisdiction, will be examined in the next section (9.3). The discussion in this section focuses on the issue of the compatibility of the Directives with MARPOL itself. The UK court considered the objections of Intertanko and the other plaintiffs to the 2005 Directive to be “well-founded” and “having a reasonable prospect of success”. In the court’s view, the verbatim implementation of these provisions of the Directive in the domestic laws of the Member States would probably result in more extensive liability for the shipping companies and other entities involved than MARPOL intended. The court referred the four arguments outlined above to the ECJ for a preliminary ruling.55 On 3 June 2008, the ECJ delivered its judgment in Case C-308/06 Intertanko v. Secretary of State.56 The ECJ held, however, that it could not assess the validity of the Directive in the light of international law and thus did not provide any substantive answers as to the Directive’s compatibility with international law (i.e., UNCLOS and MARPOL). As a matter of principle, the ECJ established that, under Article 300(7) EC, the Community institutions were bound by the agreements concluded by the Community and, consequently, these agreements had primacy over secondary legislation. Thus the validity of an EC measure could be affected by the fact that it was incompatible with rules of international law.57 The ECJ’s power to review the validity of such measures was subject to the fulfilment of three cumulative conditions: 1) the EC must be bound by the international rules in question (e.g., by the EU’s accession to a treaty or because the relevant rules represent customary international law); 2) the nature and “broad logic” of the relevant international treaty must not preclude such a review; and 3) the relevant treaty provisions must be unconditional and sufficiently precise.58 Neither UNCLOS nor MARPOL met these criteria, albeit for different reasons.59 This led the ECJ to rule that it could

The UK court also noted that concerns had been raised as to the Directive’s compatibility with international law even at the stage of legislative proposal: see para. 19 of the judgment cited in footnote 51 above. 56 Case C-308/06 The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport, ECR [2008] I-4057. 57 Intertanko, op. cit., paras 42–43. 58 Ibid., paras 44–45. 59 Ibid., para. 46 et seq. 55

220   Part Four not assess the validity of the 2005 Directive in the light of UNCLOS and MARPOL. In any event, the ECJ’s task in Intertanko had been to address the compatibility of an EC measure with international law. It had had no interest in analysing in any more detail how Member States should to fulfil their obligations under international law when transposing the Directive into their domestic laws. Thus the importance of the judgment in Intertanko for the issues considered in this section is somewhat limited. The ECJ pointed out that the Member States are party to both UNCLOS and MARPOL and accordingly are obliged to transpose the requirements of the Directives in compliance with the limitations prescribed therein. The ECJ noted that the Member States must also observe the general principle of legal certainty and ensure that their domestic rules on criminal liability for ship-source pollution are “clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are” and “take steps accordingly”.60 The Member States must also interpret the Directives’ provisions taking account of MARPOL in order to respect the customary international law principle of good faith.61 Thus the Member States face a choice of adopting either a domestic provision that reiterates the wording of the Directives or a provision that follows the wording of the corresponding provision in MARPOL. The former option may cause a conflict with the States’ obligations under international law (i.e., the provision of UNCLOS and MARPOL), while the latter may result in non-compliance with the requirements of the Directives. If a Member State has doubts as to the compatibility of the Directives with international law, it must assess whether and to what extent the Directives provide an option to establish domestic rules that more accurately reflect the provisions of MARPOL than the wording of the Directives. The ECJ noted that, in any case, in order to comply with the principle of legal certainty, the Member States must not adopt rules on criminal liability for ship-source pollution that are general and ambiguous in nature.62 In Intertanko, the ECJ emphasised The principle of the legality of criminal offences and penalties implies that Community rules must define clearly offences and penalties which they attract. This requirement is satisfied where the individual can know from the wording of the

Ibid., para. 69. Ibid., para. 52. 62 Ibid., para. 71. 60 61

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   221 relevant provision and, if need be, with assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.63

Although the Member States received no guidance from the ECJ as to the correct method of transposition of the 2005 Directive, the Advocate General’s Opinion in Intertanko dwelt on these issues in more detail. The discussion below addresses the questions that remained unanswered by the ECJ in the light of the AG’s Opinion and legal commentary on the Directives.64 As a starting point, it is necessary to examine whether criminal liability for pollution caused by “recklessness” or “serious negligence” corresponds to the applicable international standards (i.e., MARPOL). If it does, national laws envisaging sanctions for such pollution apparently would not exceed what is permissible under international law. To reiterate, while the Directives apply to pollution committed “with intent, recklessly or by serious negligence”, they do not define, in any specific terms, the criteria for determining whether conduct is reckless or seriously negligent. The application of a criterion of “serious negligence” is envisaged not only in the 2005 and 2009 Directives, but also in the Directive on the Protection of the Environment through Criminal Law.65 Otherwise both international and EU law are silent on questions of criminal fault. Definitions of criminal negligence are found rather in the domestic criminal laws and practice of Member States, which may vary significantly. Despite the essentially domestic nature of criminal law, however, logic would require the Member States to define criminal negligence in relation to discharge violations both in the light of international law, on the one hand, and also EU law, on the other.66 By what criteria may conduct be defined as either negligent, reckless or seriously negligent for the purposes of the Directives? And is “knowledge that damage would probably result” (as envisaged in MARPOL) also required for establishing criminal liability? Insofar as recklessness is concerned, some States’ criminal laws do not view this as a distinct category of fault, including it within the concept of serious negligence. It is uncertain whether the express reference to “reckless” conduct in Article 4 of the Directive was intended as anything more than a Ibid., para. 71. The principle of legal certainty is of less relevance for the discussion in this book. 65 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law, OJ [2008] L 328/28. 66 UNCLOS makes no mention at all of the applicable degree of fault, except for a few references to “wilful and serious” pollution violations. In particular, a ship involved in an act of wilful and serious pollution in the territorial sea of the coastal State no longer enjoys the right of innocent passage. See also Article 230 UNCLOS limiting applicable penalties. 63 64

222   Part Four reference to one aspect of serious negligence. For example, the (now annulled) Framework Decision made no mention at all of recklessness, instead envisaging penalties for intentional and seriously negligent pollution.67 Similarly, the Directive on the Protection of the Environment through Criminal Law sets forth sanctions for intentional, negligent and seriously negligent conduct.68 Compared to the wording of the Directive, the exception in MARPOL is more specific, in that it expressly characterises a reckless discharge as one made with some element of knowledge that damage will probably result. If the term ‘recklessly’ in Article 4 of the 2005 Directive were construed as requiring the presence of knowledge that damage would probably result, any contradiction with MARPOL would be avoided.69 For the purposes of the Directive, does the concept of recklessness (or, as the case may be, serious negligence) necessarily imply the presence of “knowledge that damage would probably result”? In the Advocate General’s view, the MARPOL requirement relating to knowledge makes it clear that the “perpetrator must have been aware of the risks posed by his actions, as is generally the case where the standard of liability with respect to recklessness is applied in common-law jurisdictions. It is not sufficient that he ought to have been aware of those risks [author’s italics].”70 Accordingly the Advocate General favoured a narrow construction of the Directives, at least with respect to conduct committed outside the territorial sea.71 Even though the ECJ did not attempt to clarify the compatibility with MARPOL and UNCLOS of the concept of “serious negligence” in Article 4 of the 2005 Directive, it nonetheless analysed the concept in the light of the principle of legal certainty. As a starting point, the ECJ noted that all the domestic legal systems of the Member States had recourse to the concept of

Article 4 of the Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, OJ [2005] L 255/164. 68 See Article 3 of the Directive which requires Member States to ensure that pollution constitutes a criminal offence, when unlawful and committed intentionally or with at least serious negligence. Cf. Article 3 of the Convention on the Protection of the Environment through Criminal Law, which mentions offences committed with either negligence or gross negligence. 69 See the Opinion of the Advocate General (AG) Kokott in Intertanko, ECR [2008] I-4057, para. 101. The AG considered this construction of Article 4 correct. 70 AG’s Opinion in Intertanko, op. cit., para. 100. See also Tan (2010), p. 475. 71 On the relevance of the maritime zone in which the reckless or negligent pollution has taken place see Section 9.3.3 below. 67

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negligence, by which was meant an unintentional act or omission by which the person responsible breached his duty of care.72 Serious negligence, however, requires a greater degree of fault than ordinary negligence. In the ECJ’s view, serious negligence could be identified by applying an objective criterion applicable to all persons of a relevant category that would determine what could be expected of such a person, particularly with regard to his experience.73 According to this view, serious negligence could be construed as including an element of “knowledge”. For the purposes of Article 4 of the 2005 Directive, the ECJ interpreted “serious negligence” as an unintentional act or omission by which the person responsible commits a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation.74

Such a definition suggests a rather gross breach of a duty of care that is very close, if not equivalent, to reckless behaviour with knowledge that damage would probably result.75 The advantage of such an interpretation is that it comes within the restrictions established by the wording of MARPOL, even if it does not, as pointed out by the Advocate General, “fully exhaust the wording of the directive”.76 Accordingly, to the extent that Article 4 can be construed as complying with MARPOL’s definition of infringements, the Member States would not be at risk of exceeding their prescriptive jurisdiction under UNCLOS with respect to foreign vessels by transposing the Directive. Such an interpretation of Article 4 would conform with international law and “interpretation in conformity with international law must be given priority over other methods of interpretation”.77 A problem with such an interpretation, however, is that it ignores the fact that the Directives apparently establish a further basis for liability (in addition to intent and recklessness) with the intention of introducing stricter rules than those set forth internationally. The fact that the Directives expressly provide for serious negligence as a basis of liability suggests that, for the Intertanko, cited in footnote 56 above, paras 75–76. Case C-48/98 Söhl & Söhlke [1999] ECR I-7877; AG’s Opinion in Intertanko, para. 145. 74 Intertanko, cited in footnote 56 above, para. 77. 75 As, according to para. 109 of the AG’s Opinion in Intertanko, would be the case in many legal systems. The AG suggested that “the particularly significant breach of the duty of care necessary for there to be serious negligence can, for the purposes of Regulation 11(b)(ii) of Annex I and Regulation 6(b)(ii) of Annex II to MARPOL 73/78, be limited to recklessness in the knowledge that damage would probably result”. 76 AG’s Opinion in Intertanko, para. 110 (n.b., these remarks were within the context of a discussion about waters beyond the territorial sea). 77 Ibid., para. 108. 72 73

224   Part Four purposes of harmonizing sanctions, there should be, in the view of the EU legislator, a relatively significant difference between the two concepts. This raises the possibility that a very restrictive interpretation of Article 4 (i.e., one that complies verbatim with the MARPOL provisions) would violate EU law, because the Member States would not be complying with the purpose of the Directives.78 Arguably, both MARPOL and the Directives are designed to catch a broad range of deliberate and accidental pollution incidents, irrespective of whether they are committed negligently or intentionally. For this reason, Article 4 of the 2005 Directive is designed to apply “to an indeterminate number of situations that it is impossible to envisage in advance and not to specific conduct capable of being set out in detail in a legislative measure, of Community or of national law”.79 Accordingly, for the purposes of approximating Member States’ laws on sanctions for discharge violations, there may be no need to distinguish so precisely between reckless and seriously negligent conduct. Member States will have implemented the Directives correctly so long as their domestic laws catch a sufficiently broad range of pollution incidents while specifically targeting violations.80 In fact, the national laws of many States apply simply to “negligent pollution”, rather than addressing the concept of serious negligence.81 Another point worth noting is that MARPOL generally defines minimum obligations for the prevention of ship-source pollution, rather than establishing an exhaustive regulatory framework to this end.82 Moreover, as stated in Article 9(2) MARPOL, the convention is not intended to prejudice the “nature and extent of coastal and flag State jurisdiction”. For example, under UNCLOS, a flag State is free to lay down stricter requirements for the vessels flying its flag than those agreed upon internationally. Coastal and port States are also generally free to adopt additional safety provisions with respect to their internal waters and ports.

EU Directives are binding as to their purpose but leave Member States free to choose the form and method of national implementation: Article 228 TFEU (ex-Article 249 EC). 79 Intertanko, cited in footnote 56 above, para. 73. Note also that UNCLOS contains no express reference to “serious negligence” as a basis for liability. The treaty refers only to an act of wilful (and serious) pollution interrupting the right of innocent passage (Article 19(2)(h) UNCLOS). 80 For the purposes of criminal liability, Member States need to retain a certain amount of flexibility as to the contents of their domestic provisions. Not all reckless acts leading to pollution would necessarily attract criminal sanctions. 81 Not all States’ criminal laws distinguish between gross and ordinary negligence, however. 82 See the AG’s Opinion in Intertanko, paras 124–130. 78

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Some commentators have argued, however, that the States parties to MARPOL may not “carve out exceptions to their obligation to treat the MARPOL provisions as a set of uniform rules” because UNCLOS does not modify the obligations of coastal States under MARPOL.83 It remains to be seen how the EU Member States will resolve this question in their national laws and practices.84 9.2.3  Who May Be Subject to Penalties for Discharge Violations? Another problematic aspect of the EU measures arises from the wording of Article 4 and Article 5(2) of the Directives, whereby the Member States are required to exceed the MARPOL rules by excluding all responsible persons other than the shipowner, the master and the crew from the exception from liability. An examination of the wording of MARPOL suggests that, for the purposes of determining liability and applying sanctions, the acts of persons other than the owner or the master are completely irrelevant in cases where a discharge results from damage. Such discharges would appear to be prohibited only where one of these two persons acts with intent or recklessly and with knowledge that damage will probably result. Yet a construction of the MARPOL provisions based strictly on the wording of the relevant Regulations of Annexes I and II leads to rather illogical results. For example, even a person who causes intentional damage to a ship or its equipment may escape liability so long as neither the master nor the owner acted with intent or recklessly.85 Such a result cannot have been intended by those drafting the convention. Furthermore, there is no indication in the wording of other provisions of MARPOL that certain persons should be exempted from liability for unlawful discharges. Cumulative criteria for establishing whether a discharge is positively permissible are set forth in Regulation 9 of Annex I and the corresponding Regulation 5 of Annex II and contain no express mention of particular persons. In addition, Article 4 of MARPOL requires “any violation of the requirements” to be prohibited and appropriate sanctions to be established by the States.86 Therefore, even when construed exclusively on the basis of its own wording, MARPOL does not preclude the States parties from establishing sanctions for violations committed by an infinite range of

See Tan (2010), p. 483. See also de La Rue and Anderson (2009), p. 1126. See also discussion of the Erika in Section 9.2.4 below. 85 See Ringbom (2008), p. 336. See also Tan (2010). 86 See Ringbom (2008), p. 418. 83 84

226   Part Four persons.87 On the contrary, the convention is open to several interpretations, one of which could be the interpretation adopted in the Directives, namely, that only the owner, the master and the crew may be exempted from sanctions, assuming the other conditions for such exemption are met.88 In any case, international treaties should not be interpreted strictly according to their wording, but with regard to their object and purpose.89 As the Advocate General pointed out in Intertanko, MARPOL should be interpreted taking into account its objectives and its function within the framework of the Convention on the Law of the Sea. According to the fourth paragraph of the preamble thereto, the overarching objective of Marpol 73/78 is to achieve the complete elimination of intentional pollution and the minimisation of accidental pollution. [author’s italics]90

The exceptions contained in MARPOL aim to introduce a common standard of care to be met by responsible actors in order to avoid accidental pollution from ships. The relevant provisions suggest inter alia that in general the application of sanctions for accidental pollution should be conditional on some degree of fault. In the absence of any general principle in international law concerning the concept of fault, it is difficult for actors to assess their respective risks of being held liable for pollution.91 Thus, in this author’s view, MARPOL discourages the application of strict liability for pollution violations. At the same time, in the light of the general objective (of both MARPOL and the Directives) to prevent pollution by discouraging potential perpetrators, it would illogical to rule out entirely the potential liability of persons other than the master and the owner. It has been argued that A purposive interpretation that potentially extends liability to other actors in the maritime chain is arguably better suited to current conditions, where there exists a clear expectation for greater environmental responsibility on the part of all segments of the shipping industry. At the very least, a purposive interpretation would avoid the situation of the agent, charterer, classification society or other actors being absolved of liability even where it can be shown

See Ringbom (2008), who concludes at p. 418 that the “open wording [of MARPOL] suggests that matters such as the identity of liable person and whether multiple persons may be held liable for the same violation are left to the national laws of the States Parties.” 88 Ibid., p. 419. 89 Article 31(1) of the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969 (entered into force on 27 January 1980), 1155 U.N.T.S. 331. 90 See the AG’s Opinion in Intertanko, para. 87. 91 Ibid., para. 88. 87

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   227 that they have acted intentionally or recklessly and contributed to a discharge violation.92

Such a construction of MARPOL would also conform better with the international civil liability regime, which expressly provides that other persons, including the crew, charterers, servants and agents, may be liable if they act with intent or recklessly and with knowledge that damage will probably result.93 Thus we may conclude that the references to the master and to the owner of the ship in the corresponding MARPOL provisions are intended to provide examples of persons who may potentially be liable for accidental pollution, rather than to exempt all other persons from liability altogether. Thus other persons may also be held liable for pollution caused by the accident, assuming the same conditions apply to them as to the master and the owner.94 Since imposing criminal sanctions in a specific case will require a stringent analysis of a range of factors by domestic prosecutors, it is unlikely that persons with a tenuous link to the accident will be exposed to criminal liability for a discharge violation in a domestic court of a Member State. As far as legal person are concerned, the Directives do not require the imposition of specifically criminal penalties: it is sufficient for penalties to be “effective, proportionate and dissuasive”.95 The “amending” 2009 Directive adds, however, a new provision aimed at ensuring that companies can also be held liable for conduct “committed for their benefit by any natural person acting either individually or as part of an organ of the legal person, and who has a leading position within the structure of the legal person”.96 Someone likely to be considered to hold a “leading position” would be a person with the authority to represent the company, to take decisions or to exercise control on its behalf.97 A relevant example would be a ship’s master, as the master could incur liability on behalf of the company for pollution caused

Tan (2010), p. 474. See also generally Tan (2006), pp. 358, 379. Article III(4) as amended by the 1992 Protocol (adopted on 27 November 1992, entered into force on 30 May 1996) to the International Convention on Civil Liability for Oil Pollution Damage, 1969 (1992 CLC). 94 See the AG’s Opinion in Intertanko, para. 93. 95 See Article 1 of the 2009 Directive, which inter alia amends Article 8 and inserts new Articles 8a (penalties against natural persons), 8b and 8c (penalties against legal persons). Cf. also the Directive on the Protection of the Environment through Criminal Law, OJ [2008] L 328/28. 96 Article 8b. 97 Article 8b(1)(a)–(c). 92 93

228   Part Four by the ship, regardless of the liability of other crew members, by virtue of his responsibility for the safety of the ship and events on board.98 The 2009 Directive also catches situations where a lack of supervision or control by a person in a leading position allows his subordinates to commit discharge violations.99 In addition, the fact that a legal person is held liable does not preclude criminal proceedings being brought against natural persons involved as “perpetrators, inciters or accessories”. Thus, a very broad range of persons associated with the ship and thus involved in the pollution violation are potentially subject to criminal or other (in the case of legal persons) penalties. The recitals make it clear that the Directives also apply to entities such as cargo owners and classification societies. Furthermore, criminal liability may also attach to the shipping company or other entities responsible for the ship if a generally poor safety culture is found to have contributed to the accident. While violations of the procedures required by the International Safety Management Code (“ISM Code”) may, in principle, attract either criminal or administrative penalties, the wording of the Directives also encourages Member States to criminalize omissions that are somewhat more remotely linked to the accident, i.e., a “lack of supervision or control” on the part of a responsible person that made the discharge violation possible. Such persons may include inter alia technical managers or charterers, as was illustrated in the case of the Erika (France). 9.2.4  The Erika and Criminal Penalties for Accidental Pollution In the Erika, the Court of First Instance in Paris (France) ruled on criminal and civil liability arising from the shipwreck of the oil tanker Erika.100 While some aspects of the verdict are beyond the scope of this book, the case is highly relevant to issues of criminal law and jurisdiction. As well as addressing the liability of the persons and companies on shore who were responsible

The Supreme Court of Athens did not accept the master’s assertion that he himself was not involved in the conduct that resulted in pollution: the Supreme Court of Athens, 5th division (2000), in relation to the negligent pollution of port waters by a Russianflagged ship, the DON. An English translation of the judgment is on file with the author.   99 Article 8b(2). 100 The judgment of 16 January 2008 of the Court of First Instance (Paris), 11th Chamber. An unofficial English translation of the judgment is on file with the author. According to the information published by the IOPC Fund, the judgment of the first-instance court in the Erika was generally upheld by the Court of Appeal. On 24 May 2012, the public prosecutor submitted his opinion to the Supreme Court of France (Cour de Cassation) recommending that the verdict against Total should be quashed by the court on the grounds that the Italian-owned and Maltese-flagged tanker had not sunk in French territorial waters, meaning, in both his view and that of Total, that French law did not apply. The court is expected to render judgment in September 2012. See, e.g., Johannès (2012).   98

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for the ship’s operations, the court also dealt with the question of the compatibility of national rules on criminal liability (including the range of liable persons and the standard of fault) with the international discharge rules.101 The facts of the case were briefly as follows. On 8 December 1999, a nearly 25-year-old Maltese-flagged tanker, the Erika, broke in two after leaving Dunkirk on her way to Italy, a little over 35 miles off Finistère (France), i.e., in the French EEZ beyond the territorial sea. The wreckage sank to a depth of about 120 m. The accident happened in severe weather conditions. The amount of oil spilled by the tanker was sufficient to cover 400 km of the coastline with a thick layer of oil that was extremely difficult to remove. The accident became a national disaster and the consequences were felt for a prolonged period, with new slicks being washed on shore months after the first clean-up operations had been completed.102 The investigation revealed numerous issues relating to the operation and maintenance of the ship, including a lack of proper knowledge of safety management procedures by the master.103 Fundamentally, however, the accident was caused by significant structural defects due to corrosion. These had rendered the tanker unseaworthy and dangerous.104 The investigators considered a number of alleged crimes: endangerment of the crew, pollution of the sea by hydrocarbons, and wilful failure to combat a disaster. Charges were brought by the public prosecutor against the master, the shipowner (Mr Savarese), a director of the ship management company, who was also a designated person onshore under the ISM Code (Mr Pollara), the classification society and one of its officers (Mr Ponasso). The oil company, Total SA, which had voyage-chartered the Erika, was also charged with pollution of the environment.105 The discussion below focuses on the charges relating to pollution of the marine environment.106

For a discussion of the Erika, see also Foley and Nolan (2008). See description at pp. 86–87 of the judgment. 103 The parties involved disputed both the sequence of events and the causes of the accident during both the investigation and the proceedings. It is not possible to cover these disputes in this work. However, the parties’ statements are discussed in the court’s judgment. 104 The judgment also highlights both the complex nature of the investigation and the disputes between the parties as to the technical condition of the ship, the causes of the accident, and other factors relevant to the question of fault. 105 Interestingly, the court disregarded defences based on the corporate veil created through the setting up of various shell companies to conceal the identities of the real owner and the actual charterer (Total SA) in order to shield them from potential liability. 106 The prosecution of onshore port-authority personnel was also considered, as the ship had 101 102

230   Part Four According to the relevant French rules,107 a ship-source pollution accident, as defined by the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties of 1969 (the 1969 Intervention Convention),108 which occurs in the EEZ and is caused by imprudence, negligence or failure to comply with laws or regulations, gives rise to criminal liability if it results in the pollution of the territorial sea or internal waters. The persons liable to prosecution for such offences are the master, any other crew member responsible for operating the ship, the owner, the operator and any legal entity (and the directors of any such entity) which controls the management or operation of the ship.109 The penalty for accidental pollution in the French EEZ is a fine. The applicable French law did not require the pollution to have been caused intentionally in order to give rise to criminal liability. Negligent pollution caused by the fault either of the master or of the other persons mentioned above was sufficient to give rise to criminal liability, as was failure to take measures to avoid pollution. Under French national law, criminal liability would only arise if the relevant law envisaged a responsibility to prevent pollution (duty of care). In this case, however, the applicable legal provision did not, in principle, require the specific fault to be the direct and immediate cause of the accident.110 The defendants argued that France’s domestic rules on criminal liability for pollution were more repressive than the international treaty rules and, consequently, that the judge had to set the inconsistent domestic rules aside. According to the defendants, French law simply required the pollution to have been caused by imprudence, whereas MARPOL required intention or recklessness with knowledge that damage would probably result. The defendants also argued that MARPOL only applied to the owner and master, whereas French criminal law unlawfully caught a broader range of persons.111 It should be noted that the issue raised in the Erika concerning the compatibility of national rules with MARPOL was the same as that submitted to the ECJ in Intertanko. In the author’s view, the court in the Erika could, in principle, have applied French national law based on the provisions of MARPOL in order to punish the owner, the classification society and the technical manager. been allowed to sail in an unseaworthy condition. However, the court did not uphold these charges. 107 Law No. 83–583 of July 5, 1983, Article 8. 108 Adopted on 29 November 1969 (entered into force May 6, 1975), 970 U.N.T.S. 211. 109 Article 8 of the 1983 Law (as cited in the judgment). 110 Erika, cited in footnote 100 above, p. 181. 111 Ibid., pp. 178–179.

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In the Erika, however, the French court established that the applicable international treaty was not MARPOL, but the 1969 Intervention Convention, which was expressly referred to in the relevant national provision. The court distinguished discharges prohibited under MARPOL (i.e., discharges prohibited under Regulation 9 of Appendix I, subject to the exceptions in Regulation 11) from pollution arising from a sea accident as defined in the 1969 Intervention Convention (where such pollution was caused by negligence). The court pointed out that since the applicable national law was based on an international treaty other than MARPOL, one could not “blame the national law for being inconsistent” with the latter, as the 1969 Convention had a different scope and set forth its own rules on conduct giving rise to liability and potentially liable persons, as well as factors that could potentially justify otherwise prohibited pollution.112 Accordingly the French court in the Erika did not rely on MARPOL, which, as argued by defendants, provided for a milder sanctions regime than the applicable domestic rules. In addition, the court established that by virtue of UNCLOS and, in particular, Article 211(5) thereof, States were permitted to adopt, in respect of the EEZ, laws and regulations aiming to prevent, reduce and control shipsource pollution which were consistent with international standards, e.g., the 1969 Intervention Convention. The damage that had occurred on board the Erika, causing it to break in two and sink, in the court’s view clearly constituted a maritime accident within the meaning of the 1969 Intervention Convention. As such France was entitled to adopt laws punishing, subject to certain conditions (such as the presence of fault), those responsible for the resulting pollution.113 Having examined the possible causes of the accident and expert statements,114 the court decided that the accident had been caused by the very poor technical condition of the ship, i.e., structural corrosion caused by insufficient maintenance, particularly taking into account the tanker’s age. There was good reason to believe that the structural weaknesses could only have developed over a long period, starting long before the accident. One issue relevant to the court’s decision was the Erika’s complex ownership and chartering structure, involving a series of shell companies established in Liberia and Malta. The structure had been designed by the owner, Ibid., p. 180 of the judgment. In the author’s view, however, the 1969 Intervention Convention was not designed to authorize States to impose penalties for pollution violations: cf. MARPOL, Article 4. 114 There was much controversy as to the actual cause of the accident. The defendants argued, for example, that the structural damage was caused by sloshing and an invisible crack in the ship’s structure (i.e., a crack that could not reasonably have been discovered). 112 113

232   Part Four Mr Savarese, so as to limit his own exposure to liability and maximize his financial returns. Unfortunately these objectives had been prioritized over considerations of safety. The court established that the Erika’s owner had known of the ship’s poor structural condition and of the fact that this was not reflected in her safety certificates. It further established that he had not prevented the ship from leaving port in severe weather conditions, without a radio officer and with a master who was inexperienced in Atlantic waters.115 As far as safety management was concerned, the owner had assigned the technical management of the Erika to a company known as PANSHIP, which had an agreement with the Maltese classification society RINA. The technical manager was well aware of the tanker’s technical condition, including the problems with corrosion, as well as of the poor record of maintenance and repair. The court also criticized RINA for not suspending the tanker’s class when the owner failed to comply with his financial obligations, as financial problems were “also telling of the conditions in which the repairs were anticipated, performed and finally, paid”.116 The court noted that “it has been established without doubt that [the shipowner and technical manager] deliberately decided, for reasons of costs, to reduce the work done in Bijela [i.e., the shipyard only made cosmetic repairs in order to cover up the tanker’s true condition—A.P.] to such an extent that they could not be unaware that this would jeopardize the safety of the ship”.117 It appeared likely that the hull’s structural thickness had not been measured at all, as the specifications contained in her documents did not coincide with measurements taken from the wreck). In any event, it was clear that the classification society’s inspector had accepted measurements made in his absence.118 Although the master was initially investigated for failing to take proper response measures on board and for his lack of familiarity with the correct emergency and ISM procedures, the investigators subsequently turned their attention to the designated person onshore, Mr Pollara. It was established that Mr Pollara had not consulted the coastal authorities or take any remedial measures on discovering that the master was not familiar with safety procedures.119 The causal link here was uncertain, however, as there was

Erika, cited in footnote 100 above, p. 91 of the judgment. Ibid., p. 205. 117 Ibid., p. 207. Interestingly, the Erika had called at several ports in different countries but had not been found to be unseaworthy at any of these ports. 118 Ibid., p. 203. 119 Ibid., p. 224. 115 116

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no real evidence to show that, during the ship’s final days of navigation, a different management strategy would have prevented the accident.120 With regard to the classification society, RINA, together with its officer, Mr Ponasso, the court found that it had continued to renew the Erika’s certificates, even though it was aware of the ship’s hazardous condition and the circumstances of her ownership and operations. Lastly, the court found that Total SA, the actual charterer of the Erika, had carried out an inspection of the tanker by means of the “vetting” procedure commonly used in tanker chartering. In this case, however, the Erika had been chartered five days after the vetting procedure had expired.121 Accordingly Total was found liable for negligence on the grounds of having chartered a vessel operating far beyond her life expectancy to transport oil products of the most hazardous and persistent nature. While the company’s vetting procedures could not have detected structural defects, the court held the company to have been “imprudent” in failing to recognize the increased dangers associated with the approval and use of an aging ship that had undergone several changes of ownership, management, and classification society.122 The court also noted that such tankers were commonly chartered to carry the most hazardous oil products. Consequently, the court found the maritime accident to have been caused by the fault of the shipowner and the technical manager, as well as the imprudence of the classification society and the charterer.123 The sanctions imposed by the court of first instance were monetary fines of the maximum amounts provided for under French domestic law.124 The case of the Erika is exceptional because the verdict caught a very broad range of failures and omissions by the persons and entities responsible for the ship. The court not only condemned the environmentally unfriendly and irresponsible practices of the maritime sector, but also imposed penalties on persons who previously had been subject to no more than moral condemnation.

Ibid., p. 225. Ibid., p. 137. 122 See also Foley and Nolan (2008), p. 45. 123 Erika, cited in footnote 100 above, p. 225. 124 Corresponding to fines of EUR 375,000 each for the classification society and the oil company, and EUR 75,000 each for the shipowner and the director of the ship management company. Apparently, the domestic provisions applicable to the crime of pollution only envisaged penalties of a monetary nature. Imprisonment was available for the crimes of endangerment and failure to combat the disaster (the master and the officers of the coastal authorities were initially charged with these crimes, but the charges were later lifted). 120 121

234   Part Four The Erika is also exceptional because it is one of the few European examples of a criminal case arising from ship-source pollution. National court practice in European countries on the application of criminal law to ship-source discharge violations is rather scarce, as pollution incidents tend mainly to be addressed by administrative measures. Generally, it remains to be seen how the Directives will be applied in practice.125 In both the Erika and the Prestige (2002), the national courts also considered the question of the liability of port officers. The circumstances of the Prestige disaster were similar to those of the Erika. On 13 November 2002, the Bahamian-registered tanker began to list and leak oil. Spain denied the tanker access to a port of refuge and the tanker was being towed away from the shore when on 19 November she broke in two and sank in the Spanish EEZ. The resulting oil spill polluted the coastline of several States, including Spain, France and Portugal. The decision of the coastal authorities not to allow the Prestige into a port of refuge was heavily criticized by industry participants and encouraged the adoption of EU rules to address inter alia issues relating to ports of refuge for environmentally unsafe vessels.126 The Criminal Court of Corcubión (Spain) had to decide inter alia which persons involved in the operation of the ship should stand trial on both criminal and civil charges.127 The court ruled that criminal charges should be brought against the master, the chief officer, the chief engineer and a shore-based civil servant (the latter in relation to the port-of-refuge issue).128 The owner and the legal entities involved in the ship’s operations were not targeted in the criminal proceedings.129 In the Erika, the investigators also

Lloyd’s List has reported a number of prosecutions by the French authorities in respect of ship-source pollution violations by foreign vessels. See the Lloyd’s List news archive on the Nova Hollandia (23 January 2004), the Pantokratos (28 January 2004), the Atlantic Hero (31 May 2005. In this case the master was acquitted by the court of first instance, but the prosecution appealed. The author has not however been able to establish the result of the appeal), the Captain Diamantis (10 January 2005), the Valentia (5 June 2009) and the Eurika (2 September 2009). 126 Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system, amended by Directive 2009/17/EC, OJ [2009] L 131/101. On ports of refuge generally, see van Hooydonk (2004). On the concept of the port of refuge in relation to the Erika, see Foley (2008–2009). 127 See also Section 6.3.5 above on the Prestige case. 128 The criminal case is pending. On civil proceedings and the case generally see the Note by the IOPC Funds Secretariat, 13 September 2011, available on the Funds’ website http:// www.iopcfund.org. 129 Possibly because the real owners were not identified in the case of the Prestige. 125

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considered prosecuting the coastal authorities for failing to take sufficient measures to prevent the shipwreck, but the court threw out the charges. International law envisages certain vague obligations on port States to ensure that unseaworthy vessels are not allowed to sail. In principle, Article 219 UNCLOS authorizes a port State to detain an unseaworthy and environmentally unsafe ship until sufficient repairs are made. EU directives impose obligations on port authorities to accept a ship in distress into a port of refuge if this would be a reasonable measure to prevent pollution in the circumstances of the case.130 Furthermore, the EU Directive on port State control requires port authorities to conduct safety compliance controls on ships entering ports.131 While the Directive does not require Member States to enact criminal sanctions for omissions by port officials, it does require Member States to provide for effective, proportionate and dissuasive penalties.132 In general, wrongful decisions by officials employed by port authorities or by coastal services responsible for the monitoring and pilotage of ships in coastal waters may give rise to criminal (or administrative) liability. The application of such penalties does not, however, raise issues of jurisdiction under international law and is thus of no particular interest to this study. In any case, it is quite likely that no investigations and prosecutions would have been initiated by the French and Spanish authorities in relation to the Erika and the Prestige had the ships either withstood their voyages or only caused minor discharges.133 Had the poor condition of the tankers been discovered during in-port inspections, the ships would have been detained for repairs. Do the 2005 and 2009 Directives catch negligent or, as the case may be, intentional conduct that while not actually resulting in any significant pollution could have done so (i.e., a “near accident”)? As a starting point, the Directives exclude from their scope minor discharges that do not cause any deterioration in water quality, with the exception of repeated minor violations that together result in more-than-minor pollution.134 The same approach has been adopted in the national criminal laws examined later in this book, none of which envisage the imposition of criminal penalties for conduct that does not amount to a substantial violation. See Article 20 of Directive 2002/59/EC as amended by Directive 2009/17/EC. Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control, OJ [2009] L 131, pp. 57–100. 132 Ibid., Article 34. 133 At least, neither the Erika nor the Prestige had been detained by the port authorities of the last countries at which they had called. 134 Article 5a(2) and (3) as set forth in the amending Directive of 2009. 130 131

236   Part Four In the author’s view, the deterrent objective of criminal liability presupposes that serious conduct should also be criminalized, even if it does not actually result in any “serious” damage to the environment (“near accidents”). In practice, however, “near accidents” that could have caused serious pollution do not generally give rise to criminal penalties. In the author’s view, it is contrary to the general objectives of the Directives to exclude at least very serious omissions concerning safety procedures and technical maintenance, as these could well result in significant pollution. Accordingly it may be reasonable to propose that Member States should introduce criminal penalties for very serious omissions or failures to perform obligations relating to environmental safety compliance irrespective of whether pollution has actually taken place. In such cases, the liable persons are likely to be shore-based and not (only) the master and the crew. 9.3  EU Rules of Criminal Jurisdiction in Ship-Source Pollution Cases 9.3.1  Overview This section examines in more detail the principles that must be adhered to by the Member States concerning criminal jurisdiction over the perpetrators of ship-source pollution. As already stated, the Directives on criminal sanctions for ship-source pollution violations apply “in accordance with international law” to discharges in all maritime zones, i.e., internal waters and ports, territorial seas, straits used for international navigation, EEZs and the high seas.135 However, the express wording of the Directives does not extend their application to unlawful pollution within the EEZ, territorial seas and internal waters of non-Member States. As a starting point, while the Directives strongly emphasize the roles of coastal and port States with regard to criminal enforcement vis-à-vis the perpetrators of pollution,136 their provisions apply to all Member States, including those acting in the capacity of flag State or of State of nationality of the master or the crew. The exercise of criminal jurisdiction by a flag State is least likely to raise issues under international law. In principal, flag States are not subject to any restrictions on their prescriptive or enforcement jurisdictions under international law with respect to their own ships. The problem is rather flag States’ insufficient exercise of their prescriptive and enforcement jurisdictions, as well as the excessive discretion they are allowed in this respect under international law.

Article 3(2) of the 2005 Directive. This is unsurprising because European States’ fleets are generally flagged-out.

135 136

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Under the Directives, however, EU flag States are placed under a positive obligation that goes beyond anything envisaged in UNCLOS, i.e., an obligation to enact and enforce criminal penalties for pollution violations as defined in the Directive.137 Before examining coastal and port States’ jurisdiction under the Directives, the following discussion examines some issues arising in relation to the exercise of criminal jurisdiction by the State of nationality of the offender. 9.3.2  EU Rules on the Jurisdiction of the State of Nationality Under international law, the States of nationality of the master and the crew have jurisdiction to criminalize and punish conduct by their nationals committed abroad. The Directives do not, however, refer expressly to flag States or non-flag States other than port or coastal States (i.e., the State of nationality of the offender, the State where the delinquent entity is registered). All States (if they are Member States) are also bound to apply sanctions for ship-source pollution violations, as an obligation to do so follows logically from the provisions of the Directives, in particular, Article 4, which requires Member States to ensure that persons that have committed a pollution violation can be held liable. Whereas the broad wording of the Directives suggests that all EU Member States are obliged to criminalize violations committed by their own nationals, the Directives make no further provision in this regard. In particular, the Directives do not establish any specific mechanism to facilitate the coordination of proceedings between flag, port and coastal States and States of nationality in cases where the exercise of jurisdiction by the latter may be relevant. As already discussed, the international conventions also do not provide for any such mechanisms, making opportunities for States of nationality to take enforcement steps relatively limited. In practice, such States seldom, if ever, exercise their jurisdiction under international law to prosecute discharge violations committed by their nationals abroad. For the reasons explained above, this situation is unlikely to change following the adoption of the Directives. Other inter-State mechanisms established within the EU to facilitate coordination and cooperation in criminal matters may also be used

Within the EU, flag States’ obligations with respect to safety generally are reinforced by a range of documents such as Directive 2009/21/EC on flag State compliance. On flag State jurisdiction under international and EU law in more detail see Ringbom (2008). However, the EMSA study on the implementation of ship-source pollution directive 2005/35 (2010, unpublished) identified only one case where the flag State enforced criminal sanctions (Poland).

137

238   Part Four in ship-source pollution cases.138 In addition, Article 10 of the 2005 Directive encourages Member States to cooperate among themselves and with the European Maritime Safety Agency (EMSA) in order to develop common information systems and to establish common practices and guidelines for the effective enforcement of the Directives. This may lead to greater involvement of States of nationality and other States that have traditionally been excluded from the enforcement regime. It should be noted that the now-annulled Framework Decision, which accompanied the original Directive on sanctions,139 contained Article 7 on questions of jurisdiction. This article encouraged Member States to take measures necessary to establish their jurisdiction, inter alia, in cases where a pollution offence was committed by one of their nationals “if the offence is punishable under criminal law where it was committed or if the place where it was committed does not fall under any territorial jurisdiction.”140 The first part of the above-quoted language contains a double-criminality rule. By virtue of this rule, a State of nationality will only punish its nationals for crimes committed extraterritorially if the conduct also is criminalized in the State where it was committed. An equivalent provision is contained in the Convention on the Protection of the Environment through Criminal Law (not in force),141 although it is not expressly mentioned in the corresponding EU directive.142 Generally, a State is free to criminalize the conduct of its nationals abroad. States are not bound under international law to take account of the doublecriminality rule, although many States do apply the rule in their domestic laws.143 Are EU Member States, for the purposes of correctly implementing the Directives, obliged to make the application of criminal liability to nationals involved in discharge violations abroad dependent on compliance with the double-criminality rule? As all Member States must comply with the Directives, it is not an option for a Member State to avoid criminalizing and prosecuting pollution violations altogether. This would, in practice, be the case if a Member State, in the capacity of a State of nationality, failed to extend its jurisdiction to conduct committed on the high seas by one of its nationals on board a ship whose

Interpol, Europol, Eurojust etc. Such mechanisms fall outside the scope of this work. Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminallaw framework for the enforcement of the law against ship-source pollution, OJ [2005] L 255/164, annulled. 140 Ibid., Article 7(1)(d). 141 Ibid., Article 5(1)(c). 142 Directive on the Protection of the Environment through Criminal Law, OJ [2008] L 328/28. 143 On double criminality see also Section 3.4.2 above. 138 139

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flag State had not introduced or enforced the criminal penalties required by the Directives (e.g., because it was a third State not bound by the Directives or because it did not consider a criminal prosecution appropriate). Since the Directives do not cover pollution violations in the internal waters or territorial seas of third States, however, it is reasonable to suggest that the application of the double-criminality requirement may be acceptable with respect to discharge violations in these maritime zones.144 In the author’s view, the broad logic of the Directives suggests that EU States of nationality are obliged to assert jurisdiction over perpetrators of their nationality in all cases where other States have not taken action. Legal persons registered in a particular Member State may also be caught by this principle of jurisdiction.145 The Directives do not insist on the imposition of criminal sanctions on legal persons, however, instead leaving Member States to determine whether legal persons should be subject to criminal sanctions or other adequate penalties. 9.3.3  Coastal and Port State Jurisdiction under the Directives We now turn to the Directives’ provisions on coastal State jurisdiction over the perpetrators of ship-source pollution. These are the provisions that so far have generated most debate on the Directives’ compliance with international law. While the Directives contain provisions that have implications for the exercise of criminal jurisdiction by coastal and port States over the perpetrators of ship-source pollution, they do not set up any comprehensive framework to this end. On the contrary, they leave to the Member States the task of working out how to apply their provisions in conformity with the relevant principles of jurisdiction under international law. As a starting point, the provisions of the Directives (and any corresponding domestic rules) on criminal sanctions may conflict with international law if their geographical and substantive reach exceeds what is permitted under international law. A first consideration here is that the definitions of infringements and exceptions set forth in the Directives do not follow the literal wording of MARPOL. As already mentioned, this has caused disputes as to their compatibility with international law. As illustrated in Intertanko, the Directives contain a stricter formulation on liability for discharges than the corresponding provisions of MARPOL. Would national laws spell out their scope of application on such a nuanced level? See Section 10.3 below on Norwegian rules on double criminality. 145 See Article 7(1)(e) of the Framework Decision 2005/667/JHA, which suggests that jurisdiction should be established by a State over a legal person responsible for pollution whose registered office is in its territory. 144

240   Part Four Secondly, the Directives have a broad geographical reach because they apply not only to discharges in internal waters, territorial seas and EEZs, but also to pollution by foreign ships on the high seas, including ships flying the flags of non-Member States. In Intertanko,146 the applicants questioned whether the requirement for Member States to adopt national rules making serious negligence a basis for liability was compatible with the right of innocent passage through the territorial sea. Furthermore, the applicants argued that, with respect to the EEZ and the high seas, the deviation envisaged in the Directives from the exception from liability set forth in MARPOL (whereby only the owner, the master and the crew would benefit from the exception) was contrary to international law. As already clarified, a coastal State generally has unrestricted sovereignty under international law to adopt and apply rules concerning foreign vessels in its internal waters and ports. This includes jurisdiction to impose criminal penalties for offences committed by crew members on board foreign vessels while in its ports. In contrast, a coastal State’s jurisdiction in its territorial sea is restricted by the right of foreign vessels to innocent passage. While the law of the sea allows coastal States to adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right to innocent passage, in the territorial sea, such rules (while they may deviate from international standards) may not hamper innocent passage.147 Thus, even if the concepts of serious negligence and recklessness introduced in the Directives do exceed the provisions of MARPOL, these concepts would be incompatible with law of the sea only if they hampered the right to innocent passage within the meaning of UNCLOS. The reference to “wilful and serious” pollution of the territorial sea in the UNCLOS provisions on innocent passage relates to vessels that have violated the right of innocent passage, thereby exposing themselves to the full jurisdiction of the coastal State. UNCLOS makes no reference to “negligent” or “seriously negligent” pollution at all. At the same time, by virtue of Articles 21 and 211(4) UNCLOS, coastal States are permitted to adopt, with respect to their territorial seas, national rules to prevent pollution, with the exception of rules relating to the construction, design, equipment and manning (CDEM)

Case C-308/06 The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport, ECR [2008] I-4057. 147 Article 211(4) UNCLOS. For a more detailed discussion of the right to innocent passage and the imposition of criminal sanctions for discharge violations, see Section 3.2 above. 146

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of foreign ships.148 These provisions do not expressly preclude coastal States from adopting sanctions for violations of discharge standards. In addition, Article 4 of the Directive does not prohibit foreign vessels from transiting Member States’ waters, but merely criminalizes certain (intentional, reckless or seriously negligent) conduct that is not necessary for passage. As pointed out by Ringbom, “[s]tandards relating to the level of negligence that triggers sanctions for pollution violations are only remotely connected to the actual passage of ships and are particularly unlikely to have any practical effects on passage”.149 Furthermore, Article 220 UNCLOS expressly grants enforcement opportunities to coastal States with respect to foreign vessels in their territorial seas that are suspected of discharge violations, including the authority to detain delinquent vessels and institute proceedings to impose penalties. This authority is not, in itself, conditional on the pollution being “wilful and serious”.150 The provisions of Part XII UNCLOS would be deprived of any meaning if coastal States were only permitted to punish intentional violations in their territorial waters. Thus, with respect to the territorial sea, UNCLOS and MARPOL do not generally preclude coastal States from adopting national discharge rules and sanctions, even though these deviate from international standards (with the exception of CDEM rules). With respect to the EEZ and the high seas, States may only prescribe national rules to the extent that these give effect to international standards such as those prescribed by MARPOL. Accordingly, States are not entitled to apply national discharge rules that are stricter than the international rules to foreign vessels in these maritime zones. This logically implies that domestic criminal or other sanctions may only be imposed for violations of international discharge standards. However, as was illustrated by the case of the Erika examined earlier in this section, the national courts may choose to rely on international rules laid down in international treaties other than MARPOL, e.g., the 1969 Intervention Convention (thereby avoiding the application of the MARPOL exemption rules).151

See, however, the counter-argument referring to States’ obligations under MARPOL: Tan (2010), pp. 482–483. 149 Ringbom (2008), pp. 411–412. 150 Ibid., p. 412. 151 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, adopted on 29 November 1969 (entered into force May 6, 1975), 970 U.N.T.S. 211. 148

242   Part Four Coastal States’ jurisdiction to prescribe criminal liability for pollution violations committed by foreign vessels in their EEZs or on the high seas is generally subject to stricter limitations under UNCLOS. Thus, Article 211(5) UNCLOS allows coastal States to adopt laws and regulations for the prevention, reduction and control of pollution from vessels in their EEZs so long as such laws and regulations conform to the international rules and standards (i.e., MARPOL).152 The Directives have provoked controversy because they appear to envisage a stricter standard of liability than the corresponding MARPOL Regulations in two ways: first, by adding “serious negligence” as a basis for liability for the infringements prohibited by the Directive (Article 4 of the 2005 Directive); and, second, by expanding the range of persons who may be penalized for the infringement (Article 5). Taking Article 4 first, it is arguable whether domestic provisions enacting liability for infringements caused by “serious negligence” would be compatible with UNCLOS. According to Advocate General Kokott in Intertanko, the concept may only be compatible with UNCLOS if interpreted narrowly in line with the wording of MARPOL (i.e., as “recklessness with knowledge that damage would probably result”).153 In this author’s view, States should shape their national provisions on fault in such a way as to conform with MARPOL to the greatest possible extent. At the same time, MARPOL does not, in the author’s view, attempt to national criminal law provisions (including those regulating the applicable standard of fault), thereby leaving considerable legislative discretion in this respect to the States.154 In addition, as pointed out in the previous section, a strictly literal interpretation of some MARPOL provisions may lead to rather illogical results.155 In any case, as illustrated by the Erika, even if a national court is aware of a possible contradiction with MARPOL, it may justify the national law provision by referring to other internationally accepted rules. Turning to Article 5 and the range of persons who may be held liable for pollution violations in the EEZ and on the high seas, Article 5(2) of the 2005 Directive provides A discharge of polluting substances into the areas referred to in Article 3(1)(c), (d) and (e) [straits used for international navigation, exclusive economic zones and the high seas] shall not be regarded as an infringement for the owner, the The same limitation would apply to a port State enforcing these standards in respect of a delinquent vessel calling voluntarily at one of its ports, assuming the violation was committed outside its own territorial sea. 153 See text accompanied by footnote 71 (Section 9.2.2) above. 154 See, however, Tan (2010), p. 476, who points out that “any ambiguity within MARPOL 73/78 cannot simply be rectified by coastal states unilaterally moving in to fill the gaps”. 155 See Section 9.2.3 above. 152

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   243 master or the crew when acting under the master’s responsibility if it satisfies the conditions set out in Annex I, Regulation 11(b) or in Annex II, Regulation 6(b) of Marpol 73/78. [author’s italics]156

By virtue of this provision, discharges in straits used for international navigation and maritime zones beyond the territorial sea (i.e., EEZs and the high seas) may be excepted from the general prohibition provided that the criteria set forth in Regulation 11(b) of Annex I or the corresponding provision in Annex II MARPOL are met. In this respect, the Directives’ rules on discharges in these maritime zones are closer to MARPOL than the rules regulating discharges in the territorial sea. The Directives’ rules are problematic, however, due to the express wording of Article 5(2) Directive 2005, whereby only the owner, the master and the crew may benefit from the exception for accidental discharges. This leaves other parties involved with the ship (notably, any shipping companies other than the owner, as well as the classification society) exposed to sanctions for discharge violations committed outside the territorial sea of the coastal State concerned. Remarkably, UNCLOS does not regulate enforcement vis-à-vis any specific persons associated with the delinquent vessel, although it does grant enforcement authority of a certain scope to the coastal State in cases where the vessel has committed a discharge violation in the coastal State’s territorial sea or EEZ. In practice, the coastal or port State would usually impose penalties on the master and members of the crew. However, UNCLOS is completely silent as to the persons who may be made subject to penalties for discharge violations.157 Irrespective of the silence of UNCLOS on this issue, restrictions on coastal and port States’ prescriptive jurisdiction under international law may still be implied from the wording of the exception clauses of Annexes I and II MARPOL, which make express mention only of the owner, the master and the crew. Generally these are the only provisions of MARPOL to make express mention of particular persons associated with the accident. As was examined in more detail above, it is not unreasonable to argue that MARPOL does not aim to regulate national laws with respect to the range of persons potentially punishable for violations of its standards. We will now examine in more detail issues concerning extraterritorial criminal jurisdiction over ship-source pollution, as provided for in the

The amended version refers to the exception that applies in cases where the discharge satisfies the conditions set out in Annex I Regulations 15, 34, 4.1 or 4.3 or in Annex II, Regulations 13, 3.1.1 or 3.1.3 of MARPOL 73/78. 157 See also Ringbom (2008), p. 417. 156

244   Part Four Directives. Can Member States enact extraterritorial criminal liability for ship-source pollution involving foreign vessels and crews (e.g., for discharges committed on the high seas)? While the Directives require the Member States to criminalize pollution on the high seas, they do not provide any detail on the principles of jurisdiction on which coastal and port States may rely when asserting criminal jurisdiction over pollution committed outside their maritime zones. The Directives do not go so far as to require (or authorize) Member States to assert universal jurisdiction over ship-source pollution violations, leaving it to Member States to assess the compatibility of their criminal sanctions on a universal basis with international law. Thus, the 2009 Directive provides that “[j]urisdiction with respect to criminal offences should be established in accordance with the national law of Member States and in accordance with their obligations under international law.”158 Generally, a State will not assert unlimited jurisdiction over any crime committed outside its territory. On the contrary, a State will justify the exercise of jurisdiction by referring to some interest in the matter, or by citing a territorial or personal link between the crime and the State (i.e., the nationality principle, the objective territorial principle, the “effects” principle, or the universality principle). For example, in the Prestige, Spain claimed jurisdiction over the accident, which had occurred in its EEZ, by virtue of the effects of the ensuing pollution on its territorial sea and coastline.159 The ECJ had an opportunity to rule on the applicability of the “effects” doctrine in EC law in Wood Pulp I.160 The case concerned anticompetitive collusion between companies registered outside the EC with respect to the prices of products produced outside, but sold within, the EC. Having examined the practice of the ECJ, the ICJ and other States, Advocate General Darmon argued in his Opinion in Wood Pulp I that As we have seen, there is no rule of international law which is capable of being relied upon against the criterion of the direct, substantial and foreseeable effect. Nor does the concept of international comity, in view of its uncertain scope, militate against that criterion either.161

Recital 12 of the Directive of 2009. See Michinel (2007). See also Article 7(5) of the annulled Framework Decision 2005/667/ JHA. 160 Joined Cases 89, 104, 114, 116, 117 and 125–129/85 Ahlström and Others v. Commission, Judgment of 27 September 1988, [1988] ECR 5193. 161 Opinion of AG Darmon delivered on 25 May 1988 in Joined Cases 89, 104, 114, 116, 117 and 125–129/85 Ahlström and Others v. Commission, ECR [1993] I—1307, para. 57. 158 159

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The Advocate General suggested that the ECJ should accept the “effects” doctrine as a criterion for the exercise of Community jurisdiction. The ECJ, however, avoided addressing the question whether Community laws could, in the light of international law, apply to extraterritorial conduct that produced “effects” within the Community. Instead the ECJ relied on the territorial principle of jurisdiction, pointing out that the companies in question had, in fact, implemented their agreement within the Community, by virtue of selling their products within its territory. Thus the court avoided having to confirm (or reject) its acceptance of an “effects-based” jurisdiction in EC (now EU) law. Perhaps unsurprisingly, Member States’ practice with respect to the extraterritorial application of criminal sanctions, particularly for pollution beyond the territorial sea, is relatively scarce. Prosecutions are more common where discharge violations occur in the ports and territorial waters of Member States, with sanctions usually taking the form of fines.162 This is probably partially due to the relative clarity of the international law rules regulating a coastal State’s jurisdiction over the perpetrators of pollution committed within its own internal waters and territorial sea. Another factor is that it is considerably easier in practice to detect violations committed near the coast and to interdict delinquent vessels while in they are in port (in line with Article 220(1) UNCLOS) than to take measures against vessels transiting the territorial waters or EEZ (or polluting on the high seas). At the same time, the Directives do not envisage any express restrictions on a State’s jurisdiction to punish pollution violations that have produced effects within its territory, despite having occurred outside the State’s territorial waters or EEZ. Moreover, the Directives do not require effects to be present within the prosecuting State’s territory in order to trigger the obligation to impose penalties. Under UNCLOS, the only provision of a similar scope is envisaged in Article 218, whereby port States may exercise jurisdiction over foreign ships involved in pollution on the high seas, even if the port State itself has not been affected. As clarified previously, a significant limitation on a State’s jurisdiction over foreign vessels concerns the right to stop, inspect and detain foreign vessels either in transit through the EEZ or on the high seas. UNCLOS does not permit a non-flag State to interdict a vessel outside its territorial waters except in cases of very serious pollution violations in the EEZ that result in The perpetrators of pollution in the EEZ have been prosecuted in some cases, albeit in relatively few States. According to the EMSA study on the implementation of ship-source pollution directive 2005/35 (2010, unpublished), France is one of the most active jurisdictions for such prosecutions. France has also prosecuted the perpetrators of pollution on the high seas.

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246   Part Four major damage. The interdiction of foreign vessels on the high seas is prohibited altogether, subject to a few exceptions (i.e., hot pursuit). For practical purposes, this means that opportunities to investigate, prosecute and punish a foreign vessel usually depend on the vessel making a voluntary call at a port of a coastal or a port State.163 A problem here is that UNCLOS does not positively oblige a port State to comply with requests from other States to conduct investigations and, if appropriate, institute proceedings. It merely requests the port State to react “as far as practicable”. This means that a port State is free to decide whether criminal proceedings are appropriate in any given case. Conversely, a port State is not entitled to institute criminal proceedings on its own initiative concerning pollution in other States’ maritime zones. Without a request from the flag State or the affected coastal State, the port State has no jurisdiction to do so.164 The EU, as a “coalition” of port States, has significant opportunities to enforce the rules regulating ship-source discharges and, where necessary, to prosecute violators through criminal law measures.165 Do the Directives make any changes to the international regime for port State enforcement with regard to discharge violations by ships? Are any positive obligations imposed on port States with regard to the criminal prosecution of perpetrators of pollution? Article 6 of the 2005 Directive “Enforcement measures with respect to ships within a port of a Member State” provides, 1. If irregularities or information give rise to a suspicion that a ship which is voluntarily within a port or at an off-shore terminal of a Member State has been engaged in or is engaging in a discharge of polluting substances into any of the areas referred to in Article 3(1), that Member State shall ensure that an appropriate inspection, taking into account the relevant guidelines

See the EMSA study, op. cit., which inter alia mentions the French practice of re-routing ships caught polluting in the French EEZ (para. 2.9). Article 220 UNCLOS does not support the practice of re-routing foreign-flagged perpetrators of pollution transiting the EEZ except in cases where major damage is being caused (see also Section 5.3 above). The French authorities have ordered foreign vessels to proceed to French ports on several occasions. See, e.g., the Lloyd’s List news archive on the Valentia (5 June 2009) and the Nova Hollandia (23 January 2004). Whether the French authorities conducted an assessment under Article 220 UNCLOS to establish whether major damage was being caused by the perpetrators is not reported. 164 See also Section 6.3.4 above for a discussion of port State enforcement jurisdiction under Article 218 UNCLOS. 165 For a comprehensive discussion of EU measures tackling the port State’s role in ensuring maritime safety see Ringbom (2008). 163

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   247 adopted by the International Maritime Organisation (IMO), is undertaken in accordance with its national law. 2. In so far as the inspection referred to in paragraph 1 reveals facts that could indicate an infringement within the meaning of Article 4, the competent authorities of that Member State and of the flag State shall be informed.

Article 6 does not distinguish between a pollution incident that occurred within the maritime zones of the State where the ship has called or an incident that occurred in the waters under the jurisdiction of another State.166 Thus the port State’s jurisdiction to inspect the ship and, if appropriate, institute proceedings is not dependent on the receipt of a request from a coastal State affected by the pollution. It is sufficient that “irregularities or information give rise to a suspicion that a ship . . . has been engaged in or is engaging in a discharge of polluting substances”. The Directive does not define the meaning of “irregularities” and does not list any sources of the “information” that may give rise to an inspection. In any event, Article 6 does not set forth any particular formal requirements. There is no need to produce “clear, objective evidence” of a violation in order to justify an inspection.167 Are EU port States obliged to institute proceedings to impose penalties in cases where the perpetrator of a discharge violation has been identified? On the one hand, the Directives do not “create obligations regarding the application of such penalties or any other available system of law enforcement, to individual cases.”168 Although the wording of Article 6 indicates that port States have a positive obligation to take measures pursuant to information received about a discharge violation (“that Member State shall ensure”), this obligation relates only to the conduct of an appropriate inspection in the light of IMO guidelines and international law. In addition, Article 6(2) requires the port State to inform the flag State and the coastal State “in so far as the inspection . . . reveals facts that could indicate an infringement within the meaning of Article 4”. Consequently, the competent authorities of the Member States remain free to apply criminal-law provisions adopted pursuant to the Directives as they see fit in the circumstances of an individual case. Generally, there is considerable variation between EU Member States with respect to the frequency of prosecution. Some States impose mainly administrative fines, while others are more assertive in the use of criminal penalties. However, as pointed out earlier, while nearly all States prosecute discharge violations committed in

I.e., Articles 218(1) and 220(1) UNCLOS are both covered. Cf. Article 7(2) of the 2005 Directive. 168 Recital 8 of the 2009 Directive. 166 167

248   Part Four their ports and territorial seas, they are less diligent in prosecuting the perpetrators of pollution in their EEZs and on the high seas. On the other hand, it would be logical to assume that the Directives require the Member States to take active steps to prosecute discharge violations that have been made subject to criminal penalties. Thus all Member States are generally required to criminalize discharge violations and apply sanctions in individual cases as they see fit. The amendments made by the 2009 Directive have also generally strengthened the Directives with regard to criminal enforcement, with the (newly introduced) paragraph 2 of Article 4 providing that Each Member State shall take the necessary measures to ensure that any natural or legal person having committed an infringement within the meaning of paragraph 1 can be held liable therefore.

This must surely be construed as requiring port States, inter alia, to assess whether criminal proceedings should be instituted against delinquent vessels, irrespective of whether a request has been received from an affected coastal State. If Article 6 is interpreted in the light of such an obligation, the Directives significantly extend port States’ obligations in comparison to Article 218 UNCLOS. Article 7 of the 2005 Directive “Enforcement measures by coastal States with respect to ships in transit” addresses situations where a coastal State suspects that an unlawful discharge has taken place in its territorial sea, EEZ or on the high seas. Thus, Article 7(2) provides that 1. If the suspected discharge of polluting substances takes place in the areas referred to in Article 3(1)(b), (c), (d) or (e) and the ship which is suspected of the discharge does not call at a port of the Member State holding the information relating to the suspected discharge, the following shall apply . . . 

Article 7 does not make express mention of the internal waters and ports of the coastal State, apparently because of a presumption that the coastal State maintains full jurisdiction over its territory and will, in any case, be interested in taking active steps vis-à-vis a delinquent vessel if a discharge is made in its internal waters. At the same time, in contrast to Article 220 UNCLOS, Article 7 refers to violations committed on the high seas and also extends a coastal State’s obligation to take certain measures (examined below) where it has detected a violation on the high seas, irrespective of whether any pollution damage was caused within its EEZ or territorial sea. Article 7 distinguishes between cases where a foreign ship calls at a port of a Member State and cases where such a ship is heading to a port outside the EU. In the former case, Article 7(1)(a) provides that

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   249 If the next port of call of the ship is in another Member State, the Member States concerned shall cooperate closely in the inspection referred to in Article 6(1) and in deciding on the appropriate measures in respect of any such discharge.

Where a discharge violation has been committed by a foreign ship that is on the high seas or in transit through the territorial waters or EEZ of a coastal Member State, and where the delinquent vessel is not heading to a port of the latter State, Article 7 of the 2005 Directive encourages that State to cooperate closely with any Member State where the ship calls next with respect to inspecting the ship and deciding on the appropriate measures to take in respect of the discharge.169 Furthermore, Article 7(1)(b) requires a Member State that detects a possible violation by a ship passing through its waters en route to a port outside the EU to ensure that the relevant port is informed of the suspected discharge, and that the State where the port is located is requested to take appropriate measures.170 Both UNCLOS and the Directives, by virtue of Articles 6(2) and 7(3), require the authorities of the flag State to be kept informed of any measures taken against its vessels. The duty to inform the flag State is set forth in the corresponding UNCLOS provisions, so the requirements in the Directives serve only as a reminder. Article 7(2) of the 2005 Directive regulates situations where there is clear objective evidence that a ship navigating in the territorial sea or EEZ has committed a discharge violation in the EEZ that causes or threatens to cause major damage either to the coastline or related interests of the Member State concerned, or to any resources in the aforementioned maritime zones. In line with the wording of Article 220(6) UNCLOS, Article 7(2) provides that the latter State shall, subject to safeguards and provided that the evidence so warrants, submit the matter to its competent authorities with a view to instituting proceedings, including the detention of the ship, in accordance with its national law. This paragraph is superfluous in that an identical provision is contained in UNCLOS. The only (albeit significant) difference is that the Directive requires the coastal State to take measures (“shall”), whereas UNCLOS only grants the coastal State the right to institute proceedings (“may”).

Article 7(1)(a) of the 2005 Directive. Apparently, successful coordination between EU and non-EU port States in this area depends on the existence of bilateral and regional arrangements on port State control and the prevention of pollution.

169 170

250   Part Four 9.3.4  EU Rules on Criminal Jurisdiction in the Light of the UNCLOS Safeguards A port or coastal State that decides to take enforcement measures against a foreign ship suspected of a discharge violation must do so within the limits of international law. In this respect, Article 9 of the 2005 Directive emphasizes that Member States shall apply the provisions of this Directive without any discrimination in form or in fact against foreign ships and in accordance with applicable international law, including Section 7 of Part XII of the 1982 United Nations Convention on the Law of the Sea, and they shall promptly notify the flag State of the vessel and any other State concerned of measures taken in accordance with this Directive. [author’s italics]

To reiterate, the safeguards set forth in UNCLOS impose a number of conditions and restrictions on the exercise of criminal jurisdiction by coastal and port States. Notably, these States’ jurisdiction is restricted with respect to the use of non-monetary sanctions for discharge violations outside their internal waters, except for wilful and serious pollution in the territorial sea.171 In contrast, flag States are generally free to decide what types of sanctions to apply to their own vessels. The Directives do not contain any provisions harmonizing Member States’ rules with respect to the questions regulated in Section 7 of Part XII UNCLOS. As a starting point, as clarified earlier, the ECJ did not permit harmonization of either the types or levels of criminal penalties for ship-source pollution by means of a “first-pillar” measure, and no new Framework Decision since has been adopted at EU level. In principle, further approximation of Member States’ laws (e.g., with respect to types of penalties) may be permitted under the Lisbon Treaty for particularly serious crimes with a cross-border dimension.172 It would also be necessary to show that the nature or impact of the crime required the EU to combat it on a common basis and that Member States could not achieve the same result individually.173 To meet the latter condition, EU legislators would generally have to show that the application by Member States of different types and levels of criminal penalties for ship-source pollution crimes “would result in a substantial

Article 9 of Directive 2005/35 and Article 230 UNCLOS. Article 83 TFEU. 173 A detailed analysis of the division of competences under the TFEU to approximate the types of sanctions imposed for pollution violations is outside the scope of this work. For a more detailed discussion see, e.g., Peers (2006), p. 425. 171 172

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risk of ineffective implementation”.174 The risk of such ineffective implementation could, for example, be demonstrated by showing that potential violators would be able to derive an advantage from the fact that some Member States applied less stringent sanctions than others. In fact, Member States’ practices do vary considerably with respect to the types and levels of sanctions imposed.175 Criminal sanctions are generally considerably less common than administrative fines, although this is not, in itself, evidence of non-compliance with the Directives.176 At the same time, the approximation by Member States of the types and levels of penalties imposed for discharge violations could ensure that the same conduct was condemned in the same way by all Member States (an objective already promoted by the relevant Directives). It would also ensure that, regardless of where a case was heard, offenders would face the same types and levels of penalties. This would be a positive development both with a view to improving the deterrent effect of criminal sanctions and to ensuring legal certainty for actors in the shipping industry.177 In any event, any provisions adopted by the EU to harmonize criminal penalties for ship-source pollution would necessarily have to take account of the safeguards imposed by international law (i.e. Article 230 UNCLOS). These safeguards would not prevent such provisions from addressing the amounts of fines to be imposed for discharge violations.178 Any EU measure to approximate the types and levels of criminal sanctions for ship-source pollution would, however, have to cover all types of criminal

Peers (2006), p. 425. As is shown by the EMSA study on the implementation of ship-source pollution directive 2005/35 (2010, unpublished), which concludes that there are enormous variations between national legal systems in the severity of the punishments imposed. Although these variations apply to both imprisonment and fines, there are particularly large differences in the levels of fines: see p. 12 of the study. 176 Although the Directive of 2009 (to be transposed into Member States’ laws) does require criminal sanctions to be imposed on such infringements as are defined therein, logically the Member States will be allowed a certain margin of appreciation in this respect. 177 See the text accompanied by footnote 15 above on “strategic” pollution, whereby polluters choose to pollute in the waters of port or coastal States that are least likely to take enforcement action. 178 See, e.g., Article 6 “Penalties against legal persons” of the now-annulled Framework Decision 2005/667/JHA. This suggested the imposition of particular levels of criminal and non-criminal fines depending on the seriousness of the violation and the degree of fault. Thus, fines of EUR 150 000 to EUR 300 000 were suggested for “regular” infringements, rising to between EUR 750 000 and EUR 1.5 million for serious and intentional crimes. In practice, this would be more effective from the perspective of non-flag State enforcement, as EU Member States are, with a few exceptions, not major flag States. 174 175

252   Part Four sanctions considered necessary to achieve the objective of the main harmonization measures.179 Adopting common rules that dealt only with the amounts of monetary penalties and ignored other types of criminal sanctions would probably deprive the harmonization measure of its purpose, as it would leave unregulated those situations where States were entitled by UNCLOS to apply criminal sanctions other than monetary fines. This is the case where the State imposing the sanctions is either the flag State or a coastal State affected by wilful and serious pollution in its territorial sea. In addition, the State of nationality of the master and the State where the shipping company is registered are not expressly covered by the limitations imposed by Article 230 UNCLOS and could, arguably, be permitted to impose non-monetary penalties. In this context, it is worth noting that nonmonetary penalties will not necessarily take the form of imprisonment, but may include measures such as professional disqualification for natural persons or equivalent sanctions for legal entities.180 It will be up to the enforcing States to decide whether a particular penalty is compatible with international law. In any case, due to the restrictions imposed by UNCLOS, the use of custodial or other sanctions is not likely to increase in practice, even if further harmonization were undertaken.181 Apart from restricting the types of available penalties, the “Safeguards” provisions of UNCLOS also address a number of other important questions likely to arise in the course of enforcement action against a foreign ship. These include questions concerning the release of the vessel and the crew, the suspension and taking over of proceedings by the flag State, and the rights of persons charged with pollution-related crimes. The Directives do not contain any provisions that would harmonize the interpretation and application of these safeguards by the Member States. This may be explained by uncertainty as to the EU’s competence to take measures in this respect. In the author’s view, a harmonized approach to the application of the “Safeguards” provisions would not only decrease forum-shopping opportunities for the perpetrators of pollution, but would also improve the situation

See Article 4(3) of the annulled Framework Decision 2005/667/JHA which proposed the imposition of additional penalties on natural persons (e.g., disqualification). In addition, Article 6(1)(b) provided, apart from fines, for the following measures: exclusion from entitlement to public benefits or aid; temporary or permanent disqualification from engaging in commercial activities; judicial supervision; a judicial winding-up order; and the adoption of specific measures in order to eliminate the consequences of the offence that had led to the liability of the legal person. 180 See Articles 4(3) and 6 of the annulled Framework Decision 2005/667/JHA. 181 See also Ringbom (2008), p. 336. 179

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of responsible actors in the shipping sector by enhancing legal certainty. For example, as pointed out by legal commentators, if the Directives had included a provision harmonizing the domestic requirements of Member States with respect to bonds or security, this would have benefited flag and coastal States, as well as persons and entities involved in criminal proceedings.182 A final point to note is that the Directives do not provide any instructions as to how to allocate jurisdiction in cases where two or more coastal States assert jurisdiction to prosecute a perpetrator of pollution.183 As experience notoriously illustrates, a single pollution accident at sea may significantly affect the coastlines of several States, raising questions about the proper allocation of the (concurrent) jurisdiction to institute the proceedings and punish the perpetrator.184 UNCLOS sets forth some rules for determining which State will conduct proceedings to impose penalties. Importantly, Article 228 UNCLOS contains provisions on the suspension of proceedings, as well as restrictions on their institution. This article provides, inter alia, that the flag State may request the coastal State to suspend proceedings instituted pursuant to a pollution violation committed outside the latter State’s territorial sea. The exceptions to this rule are where major damage has been caused to the coastal State’s EEZ or where the flag State in question has repeatedly disregarded its obligations effectively to enforce international rules and standards. This provision also serves to preclude parallel or double prosecutions in pollution cases, as well as to impose time limits on the institution of proceedings. In the author’s view, Article 228 would be more effectively applied in practice if all EU Member States adopted a common approach to its interpretation. In particular this applies to the exception that enables States to refuse to transfer proceedings to flag States that have a poor record for enforcing environmental safety.185 However, apart from precluding parallel prosecutions (in line with the ne bis in idem principle), Article 228 does not address the situation where two or more coastal States are competing to prosecute a perpetrator of pollution. The allocation of criminal jurisdiction in such cases should properly be determined under UNCLOS and in the light of international law generally.

Ibid. It is uncertain whether the Community would have had the competence to harmonize jurisdictional issues within the framework of the common transport policy at the time the 2005 Directive was adopted. The ECJ did not provide an answer to this question: see the discussion of the judgment in Case C-440/05 Commission v. Council in Section 9.1 above. 184 See Section 6.3.5 above on the Prestige. 185 For more detail on Article 228 UNCLOS see Section 7.4 above. 182 183

254   Part Four Previously, the now-annulled Framework Decision contained some guidance for determining which State was best suited to exercise criminal jurisdiction over a perpetrator of pollution. The Decision mentioned factors such as: the maritime zone where the offence was committed or where the effects of the offence were felt; the territorial waters or EEZ where the delinquent ship was in transit; the nationality or place of residence of the perpetrator; the place of registration of any legal person involved; and the flag State of the delinquent ship.186 Questions of concurrent jurisdiction in criminal cases, including shippingrelated environmental crimes, can also be resolved within the framework of EU judicial and police co-operation. The Council Framework decision on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings187 promotes cooperation between the prosecuting authorities of the Member States and aims inter alia to prevent parallel criminal proceedings in violation of the ne bis in idem principle. It also aims to help Member States reach agreement on effective solutions as to allocation of jurisdiction.188 This Decision focuses on essentially the same factors as those mentioned above: the place where the major part of the criminality occurred; the place where the majority of the loss was sustained; the location of the suspected or accused person and the possibilities for securing his surrender or extradition to other jurisdictions; and the nationality or residence of the suspected or accused persons. The Decision also mentions that it is necessary to take into account the significant interests of victims and witnesses, as well as the admissibility of evidence and any delays that may occur.189 The decision by Eurojust in the Prestige illustrates how a conflict of jurisdiction can be resolved in a case where two or more States have been affected by pollution.190

Article 7 of the Framework Decision 2005/667/JHA. Council Framework Decision 2009/948/JHA of 30 November 2009, OJ L 328/42 15.12.2009. This topic is not addressed on its merits in this monograph. On EU law generally concerning conflicts of criminal jurisdiction, see, e.g., Panayides (2006). 188 With regard to parallel prosecutions and the application of the ne bis in idem principle in Europe, it is also relevant to note that Article 54 of the Schengen Convention contains provisions preventing such prosecutions among the States parties to the Convention (including Norway). 189 The ninth recital of the Framework Decision. 190 See Section 6.3.5 above. 186 187

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10  Kingdom of Norway 10.1  Introduction This Chapter examines Norway’s approach to the criminalization of shipsource pollution and its exercise of criminal jurisdiction over Norwegian and foreign-flagged vessels involved in discharge violations. As a starting point, intentional or negligent ship-source pollution involving either Norwegian or foreign ships in Norwegian coastal waters is prohibited and may give rise to administrative or criminal penalties.191 In practice, Norway has applied mainly administrative sanctions for discharge and other safety-related violations involving ships.192 The Arisan (1992) and the Full City (2009), examined in more detail below, are exceptions in this respect, as both these cases of accidental pollution resulted in prison sentences for the masters. Although in general Norwegian criminal law is codified in the Penal Code,193 criminal liability may also arise under the provisions of other special legislation. The key piece of special legislation with regard to ship safety is Act no. 9 of 16 February 2007 relating to Ship Safety and Security (the “Ship Safety Act”),194 which also covers ship-source pollution. The objectives of the Ship Safety Act are to “safeguard life, health, property and the environment by facilitating a high level of ship safety and safety management, including preventing pollution from ships”.195 Prior to the adoption of the Ship Safety Act, safety obligations relating to vessels, and the sanctions applicable for shipping-related offences, were mainly contained in the Seaworthiness Act (Act No. 7 of 9 June 1903), which was replaced in its entirety by the Ship Safety Act.196 The Ship Safety Act abolished some earlier provisions that were no longer considered relevant, and introduced new rules that inter alia took

For a comprehensive discussion and analysis of Norwegian environmental law generally see Bugge (2011). 192 See generally Hernes Pettersen/Bull (2010). 193 The Penal Code of 1902 (Act No. 10 of 22 May 1902) (Almindelig borgerlig straffelov) is to be replaced by the new Penal Code of 2005 (Act No. 28 of 20 May 2005) (Lov om straff (Straffeloven)) (not yet in force). Hence the references here to the Penal Code of 2005, where relevant. 194 Lov om skipssikkerhet (Skipssikkerhetsloven) in effect as from 1 July 2007. An unofficial English translation of the Act is available at http://www.sjofartdir.no under “Legislation and International Relations”. 195 Section 1 of the Ship Safety Act. 196 Lov om statskontrol med Skibes Sjødygtighed (Sjødyktighetsloven) (repealed). 191

256   Part Four account of obligations for the safe management of ships, as envisaged in the ISM Code.197 The Act focuses generally on the prevention of operational discharges from ships. As practice shows, however, some of its provisions are also relevant in cases of pollution caused by a casualty such as a grounding. The Act penalizes not only discharges but also other infringements of safety procedures, such as failure to report a pollution incident etc. In addition, the Act requires ships to be safely designed, built and equipped, and imposes penalties for infringements of these obligations.198 Either in the alternative or in parallel to the application of this Act, criminal liability for ship-source pollution incidents may also arise under the Norwegian Penal Code, mentioned above, and Act no. 6 of 13 March 1981 Concerning Protection against Pollution and Concerning Waste (the “Pollution Control Act”).199 Both the Penal Code and the relevant pieces of special legislation also contain provisions relevant for determining Norway’s criminal jurisdiction over the perpetrators of pollution. The discussion in section 10.2 below examines the Norwegian legislative provisions regulating criminal liability for ship-source pollution, as well as related court practice. Section 10.3 examines Norwegian rules on criminal jurisdiction with respect to ship-source pollution. 10.2  Criminal Liability for Ship-Source Pollution Rules on criminal liability for environmental infringements in shipping are set forth in the three Norwegian statutes mentioned above. First, the Ship Safety Act envisages a range of environmental safety obligations (Chapter 5) and provides for the imposition of penalties for violations of these obligations (Chapter 10). Second, the Pollution Control Act contains provisions that may apply to pollution incidents involving ships (Section 7, Chapter 6 and Chapter 10). Third, the Penal Code contains Article 152b “Serious environmental crime”, which applies inter alia to serious ship-source pollution violations. As a starting point, the Ship Safety Act prohibits pollution in the following terms: Pollution of the external environment by the discharge or dumping from ships, or by the incineration of harmful substances, or pollution in any other way On the Ship Safety Act generally see Falkanger, Bull and Brautaset (2011), pp. 75 et seq. Section 32 of the Ship Safety Act. 199 Lov om vern mot forurensning og avfall (Forurensningsloven): Act no. 6 of 13 March 1981, which came into force on 1 October 1983. A complete English translation (last amended on 20 June 2003) is available at http://www.regjeringen.no. 197 198

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   257 in connection with the operation of the ship is prohibited, unless otherwise decided by law or regulation laid down pursuant to law.200

The Act’s prohibition of pollution from ships and the provisions of the governmental decree (regulation) adopted under its authority are generally based on the provisions of MARPOL. The meanings of terms such as “harmful substances”, “discharge”, “dumping” and “incineration” are also determined in more detail by the regulations issued under the Act.201 Safety-related obligations in shipping are imposed on a broad range of persons associated with the ship. The key person on board the ship responsible for her day-to-day operation is the master, who is assigned various duties relating to the protection of the marine environment and the clean operation of the ship. Thus the master is responsible for ensuring that no discharges take place from the ship in contravention of the Act or the underlying international standards. In addition, the master is responsible for the proper keeping of oil record books and emergency preparedness, as well as the proper reporting of incidents entailing a risk of pollution.202 Criminal penalties may be imposed for intentional or negligent breaches of the master’s duties relating to environmental safety. Thus Section 65 “Breach of the master’s duties in respect of environmental safety” of the Ship Safety Act provides that Any master who willfully or through gross negligence: a) substantially violates his duty under section 37(1)(a), to ensure that, in the event of pollution, notification is given, measures are taken and subsequent reports are submitted as required under section 34(2), or b) substantially violates his duty under section 37(2)(b) to participate in ensuring that the operation of the ship is arranged and carried out as required under section 33, so that pollution of the external environment from the ship in violation of section 31 does not occur.   shall be liable to fines or imprisonment of a term not exceeding two years. Any master who willfully or through gross negligence: a) substantially violates his duty under section 37(1)(c), to ensure that log books are kept correctly [ . . . ] or b) substantially violates his duty to section 37(2)(a) to participate in ensuring that the ship is equipped as required under section 32, so that pollution of the external environment from the ship in violation of section 31 does not occur.   shall be liable to fines or imprisonment for a term not exceeding one year.

Section 31(1) of the Ship Safety Act. The main regulation in this respect is the MARPOL Regulation (Regulation on the Prevention of Pollution from Ships No. 1122 of 16 June 1983) (Forskrift om hindring av forurensning fra skip—MARPOL-forskriften). See generally Bugge (2011), pp. 128–129. 202 Section 37 of the Ship Safety Act. 200 201

258   Part Four Other persons associated with the ship (crew members, the shipping company) are also subject to safety obligations and may be liable to administrative or criminal sanctions for any infringements.203 Section 66 “Breach of the duties of other persons working on board in respect of environmental safety” of the Act provides that Other persons working on board who wilfully or through gross negligence substantially violate their duty under section 38 to participate in ensuring that the operation of the ship is arranged and carried out, so that pollution of the external environment from the ship in violation of section 31 does not occur, shall be liable to fines or imprisonment for a term not exceeding one year.

Similarly to the MARPOL exceptions examined earlier in this Chapter, discharges generally prohibited by the Act may be justified in certain circumstances.204 The first exception applies to a discharge of harmful substances or dumping that is necessary to preserve the safety of the ship, the health of those on board, or in order to save lives.205 The second applies to a discharge of harmful substances or dumping that is due to damage to the ship, where all reasonable steps have been taken both before and after the accident to prevent or minimise the discharge.206 The Act does not specify whether this exception would cease to apply where it could be demonstrated that particular persons had acted intentionally or recklessly knowing that damage would probably result. Criminal sanctions for pollution of the environment are also envisaged under Pollution Control Act. For most cases of ship-source pollution, the Pollution Control Act simply refers to those provisions of the Ship Safety Act that are relevant for assessing the seriousness of a discharge and, if appropriate, imposing sanctions.207 However, the Pollution Control Act still applies to certain pollution incidents and imposes obligations (backed up by the threat of criminal sanctions) on a range of persons who may be involved.208 As a result the two acts do overlap to some extent, such as in the case of pollution incidents involving Norwegian or foreign vessels within internal waters

Section 38 of the Act imposes environmental safety obligations on “other persons working on board”. 204 Ibid., Section 31(2). 205 Ibid., Section 31(2)(a). 206 Ibid., Section 31(2)(b). A corresponding exception is set forth in para. 1–5 of the MARPOL Regulation (cited in footnote 201 above). 207 Section 5(2) of the Pollution Control Act 1981. See also Bugge (2011), p. 127 et seq. 208 See Section 7(2) and (4), Chapter 6 and Sections 74–77; Chapter 7, Section 74 and Chapter 10 of the Pollution Control Act. See also Bugge (2011), p. 127 et seq. 203

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or the territorial sea. Generally it is up to the public prosecutor to decide on which basis to proceed.209 Ship-source pollution falls within the scope of the Pollution Control Act where the incident represents “acute pollution”.210 “Acute pollution” is defined as “significant pollution that occurs suddenly [thereby excluding operational discharges—A.P.] and that is not permitted under or according to this law.”211 Commentators use the formulation “pollution accident” instead of “acute pollution”.212 In cases where there is a threat of illegal and acute pollution, the persons “responsible” for the pollution (including the master) must undertake measures to prevent it.213 Where pollution has already taken place, there is an obligation to stop, remove or limit its effects. Measures must also be taken to mitigate damage and nuisance resulting both from the pollution incident itself and also from the measures taken to combat pollution. The latter obligation relates to measures that are reasonably related to the avoidance of damage and nuisance. Apart from imposing an obligation to combat pollution that has already occurred,214 the Pollution Control Act requires the person responsible for the pollution to notify the competent authority of the coastal State of the incident or threat of pollution.215 Furthermore, those on board the vessel must be prepared to take measures to deal with the threatened or actual incident and the vessel must have appropriate preparedness plans for this purpose.216 Under the Pollution Control Act, criminal sanctions may be imposed not only for the conduct that has caused the pollution but also for failure to take measures and perform the obligations described above with respect to reporting and combating (preparedness for) the emergency. Intentional or negligent failure to comply with requests issued by the authorities may also result in the imposition of sanctions.

Hernes Pettersen/Bull (2010), pp. 783–784. Chapter 6 of the Pollution Control Act. 211 Section 38 of the Pollution Control Act. 212 Bugge (2011), p. 86. 213 Section 7(2) of the Pollution Control Act. The range of responsible persons is not limited to those on board (or otherwise connected with) the ship, but also includes, e.g., the responsible officers of the coastal authorities. 214 Ibid., Sections 7(2) and 46. 215 Ibid., Section 39. In addition, the person responsible for the pollution is under a duty to provide the authorities with any information necessary to enable them to carry out their tasks pursuant to the Act (Section 49). The pollution authorities also have powers to enforce the implementation of measures if the person or entity in question fails to comply voluntarily (Section 74). 216 Ibid., Sections 40 and 41. 209 210

260   Part Four Section 78 of the Act provides for a penalty in the form of a fine and/or up to three months’ imprisonment for intentional or negligent conduct. Thus the Act does not require the presence of “gross negligence” to trigger criminal liability. For the purposes of the Ship Safety Act, ordinary negligence is also sufficient, except in the case of failure to notify, which envisages a standard of fault based on gross negligence. The Ship Safety Act and the Pollution Control Act impose a number of specific duties on the master, the crew and the shipping company that are intended to prevent or minimize pollution from ships. For example, the Ship Safety Act requires that in the “event of pollution or a danger of pollution, an immediate notification of the incident and of the measures that are or will be taken in order to avoid or limit the effects shall be given.”217 In addition, the master must ensure the taking of “reasonable measures” to prevent pollution or limit its effects. He must also ensure that logbooks are kept correctly.218 The shipping company also has a duty to report incidents of pollution.219 This duty applies not only to maritime casualties, but also to any other circumstances the supervisory authorities should be aware of, including safety and environmental work.220 In the light of MARPOL and the environmentalsafety provisions of the Ship Safety Act,221 this obligation should be understood as requiring the shipping company and the master to self-report all incidents involving pollution violations, whether of accidental or operational origin. Failure to make such reports or the making of false entries in the oil record book may trigger the imposition of criminal sanctions under the Act.222 Although the Ship Safety Act and the Pollution Control Act are lex specialis in relation to the Penal Code, the Penal Code applies, in principle, to some pollution incidents by virtue of Section 152b of Code, which covers serious environmental crimes.223 Thus very serious ship-source pollution violations may, in principle, attract the more severe sanctions envisaged in the Section 34 (in Chapter 5) headed “Emergency response system, notification and reporting”. See also the MARPOL Regulation and the Regulation on the duty of notification and reporting (Regulation No. 0744 of 27 June 2008) (Forskrift om melde- og rapporteringsplikt). 218 Section 37 of the Ship Safety Act. 219 Ibid., Section 47. 220 As required by Section 47(2) and (3) of the Ship Safety Act. 221 Set forth in Chapter 5 of the Ship Safety Act. 222 Ibid., Chapter 10. Criminal sanctions for the improper keeping of log books are contained in Section 65, which addresses the breach by the master of his/her environmental safety duties. 223 Corresponds to Section 240 of the 2005 Penal Code (not in force). 217

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Code.224 According to Section 152b(1), up to 10 years’ imprisonment may be imposed on a person who intentionally or by gross negligence either pollutes the environment (including water) in such a way as to cause considerable harm or the threat of such harm, or who stores, dumps or discharges waste in a way that causes an imminent risk of such pollution or the threat of such pollution occurring.225 Furthermore, Section 152b(2) provides for up to 15 years’ imprisonment for incidents causing death or serious injury. In the case of the Full City (2009), the prosecuting authorities initially contemplated charges under the Penal Code. Subsequently, however, they decided to proceed on the basis of the Ship Safety Act and the Pollution Control Act.226 The Code may yet be applied, however, in similar cases in the future.227 In the case of the Full City, the Norwegian courts had an opportunity to examine the conduct of the master and some members of the crew in the light of the Ship Safety Act and the Pollution Control Act. Although the Norwegian courts had already developed some practice on negligent environmental violations, the Full City was the first case in Norway specifically to address the application of criminal liability to accidental ship-source pollution since the Arisan (1992).228 On a stormy night in July 2009, a Panamanian-registered bulk carrier, the Full City, with 23 crew members on board, lost its anchor and began drifting uncontrollably. The master unsuccessfully tried to manoeuvre the ship out of danger, but she ran aground at around midnight near the town of Langesund (in Norwegian internal waters). The ship was operated by Cosco Maritime Ltd (Hong Kong). The master and the crew were Chinese.

According to Section 69(4) of the Ship Safety Act, the provisions of Chapter 10 of the Act, entitled “Criminal penalties”, do not apply if the violation in question comes within the scope of a more severe penal provision (for an example, see the Full City and the charges (not yet formally brought) against the master for serious environmental criminality). See also Bugge (2011), who points out at p. 316 that this provision catches the most serious types of environmental crimes. 225 Cf. Section 240 of the 2005 Penal Code (not in force), which envisages up to 15 years’ imprisonment for an equivalent crime. 226 The use (although only initially) of this provision in the Full City was unusual, bearing in mind that the conduct was negligent and that similar cases have generally been dealt with under the Pollution Control Act. Apparently, the provision on serious environmental crime in the Penal Code was utilised by the prosecution authorities in order to ensure that the convicted persons were arrested to prevent them from leaving Norway. 227 As is reasonably pointed out by Bugge (2011), at p. 316, the two other statutes may be easier to apply in practice, while at the same time allowing for the imposition of severe penalties, including imprisonment and heavy fines. 228 On the Arisan, see Section 10.3 below. 224

262   Part Four A rescue operation was launched by the coastal authorities but failed to prevent a spill of bunker oil from the ship. The spill was discovered the next morning. The key issue for the court was whether the master and the third officer had exercised the standard of care required by the two statutes in their actions before, during and after the grounding. The following discussion examines the application of the Ship Safety Act and the Pollution Control Act to the conduct of the master and the third officer. In this respect the master faced two charges: 1) that he had failed to take adequate measures to prevent the accidental pollution, as required by the Pollution Control Act; and 2) that he had infringed a number of provisions of the Ship Safety Act. In particular, the master was accused of gross negligence for failing to notify the authorities of the potential pollution, as required under the Ship Safety Act. The court of first instance upheld these charges and sentenced the master to six months’ imprisonment (of which 120 days were suspended). Meanwhile, the third officer was sentenced to 60 days of imprisonment (of which 21 days were suspended) for violation of the Pollution Control Act.229 The Court of Appeal upheld the charges against the master (while commuting his prison sentence to one of probation). The third officer, however, was ultimately acquitted of all charges.230 The further discussion focuses on the findings of the Court of Appeal and, in particular, on the court’s interpretation of the concept of negligence. Generally, the Norwegian courts take a discretionary approach when assessing whether pollution caused by negligence should be categorised as criminal and will examine the accused’s conduct in the light of the circumstances of the case as a whole. As a starting point, a person is negligent if his conduct deviates from the standard of care that a reasonable and competent person would have observed in the circumstances, bearing in mind the relevant person’s position and responsibilities.231 A person involved in an inherently dangerous activity (of which shipping is a good example) must take particular precautions and exercise special care because of the high probability that lack of care will result in significant damage.232 What constitutes sufficiently careful conduct will be evaluated strictly. The Supreme Court pointed out in this Den offentlige påtalemyndighet (The Public Prosecutor) mot A og Q (the Full City), district court in Nedre Telemark (court of first instance), 3 May 2010 (unpublished). 230 RG. [NCA] 2011.680 Den offentlige påtalemyndighet (The Public Prosecutor) mot A og Q (M/V Full City) (Court of Appeal in Agder, Norway, 22 June 2011). 231 For a definition of negligence see also Section 23 of the Penal Code 2005 (not yet in force). 232 This means that persons responsible for safety must be particularly careful with regard to their own conduct (the precautionary principle). See also Bugge (2011), p. 74. 229

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respect that “it is clear that the interests, which are protected by the provision on penalties in Section 78 [of the Pollution Control Act—A.P.], are very weighty and require the application of a stringent norm.”233 To reiterate, Section 7(2) of the Pollution Control Act provides that If there is a danger of pollution contrary to this Act or decisions made pursuant thereto, the person responsible for the pollution shall ensure that measures are taken to prevent such pollution from occurring. If pollution has already occurred, the said person shall ensure that measures are taken to stop or remove the pollution or limit its effects. The person responsible also has a duty to take steps to mitigate any damage or nuisance resulting from the pollution or from measures to counteract it. The duty laid down in this paragraph applies to measures that are in reasonable proportion to the damage and nuisance to be avoided.

Negligence for the purposes of the Pollution Control Act may be determined on the basis of objective factors showing that the violation resulted from a failure to undertake “reasonable measures” required by the Pollution Control Act in circumstances where there is an actual danger of pollution.234 The greater the risk of pollution, the more stringent the standards against which the conduct of the persons responsible will be assessed.235 The Act does not define “reasonable” measures, as this will depend on the individual circumstances of the case. Generally, however, the courts have evaluated the alleged negligence of the responsible person by assessing whether he acted as a “competent and thoughtful person would have acted in a corresponding situation.”236 An experienced person will be found to have exercised proper attention within the meaning of this provision if a person with normal expertise would have considered that there was no danger of a spill.237 In the Full City, the court was very specific in its discussion of the measures that the master could reasonably be expected to have taken to prevent or minimize the accident. The court stressed the master’s failure to take measures “fundamental to the ship’s safety”, such as monitoring weather conditions and forecasts, properly observing the ship’s position and movements See, e.g., Rt. [NSC] 2002.1368 Den offentlige påtalemyndighet (the Public Prosecutor) mot A. Decision of the Supreme Court of 1 November 2002, p. 1371 (author’s translation). See also judgment of 5 December 2003, Court of Appeal in Gulating, ND 2003.384 Sleipner. 234 The Full City (The Court of Appeal), cited in footnote 230 above, p. 14 of the judgment. 235 Decision by the Supreme Court’s Appeals Committee of 9 November 2009, Rt. [NSC] 2009.1383 M/V Full City (concerning the detention of the master and the third officer). See also text accompanied by footnote 331 below. 236 Den offentlige påtalemyndighet (the Public Prosecutor) mot A (2002), cited in footnote 233 above. 237 Ibid. 233

264   Part Four while she was anchored, and giving proper and clear instructions to the crew members on watch. In addition, the master had failed to assess the risks entailed in anchoring the ship so close to the shore in the prevailing weather conditions and had made no attempt to sail further away from the shore as the wind strengthened.238 In the court’s opinion, the master should have realised that there was a clear possibility that neglecting to take the abovementioned measures might lead serious damage. Furthermore, in the court’s view, the specific dangers faced by the ship in this case should have been taken into account by the master when assessing what measures were reasonable and proportionate. In particular, the fact that the Full City had just bunkered and was making a ballast voyage showed, in the court’s view, that she represented an especially significant environmental hazard in the event of an accident. Other dangers such as the general exposure of the place of anchorage to storms and the severe weather conditions that night only served to increase the necessary standard of care.239 In this case, the court determined that the master had acted negligently as, in the light of his experience and knowledge (he was an experienced seafarer), he ought to have been aware of the risk of pollution. The court also examined the charges brought against the master under the Ship Safety Act. These charges alleged a failure to ensure safe and adequate watch-keeping on board (through failure to give sufficient instructions to the crew), and failure to notify the coastal authorities (the local Vessel Traffic Service unit) of the emergency.240 The following discussion examines the court’s finding that the master had been grossly negligent in failing to comply with his duty to notify the authorities of the hazardous situation. To attract criminal liability under the Ship Safety Act, a failure to notify has to be not only substantial but also grossly negligent.241 Thus, proof of a higher degree of negligence is required to trigger criminal liability for this violation than elsewhere in the applicable Acts.

The court specified a range of other measures that could have been taken by the master, e.g., giving clear instructions to the crew about the use of cross bearings, using radar to measure distances, using anchor alarm systems and ordering the engine to be kept running on standby. Such arrangements might have allowed the drifting to be discovered earlier, as well as possibly enabling the master to manoeuvre the ship out of danger. 239 The Full City (The Court of Appeal), cited in footnote 230 above, pp. 15–16 of the judgment. See also decision of the Norwegian Supreme Court of 24 May 2003, Rt. [NSC] 1993.605 M/S Seacat. 240 Sections 15(2) and 19(1) Ship Safety Act. 241 Ibid., Sections 37(1) and 34(2) and 65(1)(a). 238

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Generally, conduct will be considered grossly negligent where it is very reprehensible and there are strong grounds for reproach.242 The Supreme Court of Norway has described grossly negligent behaviour as “especially blameworthy conduct [that] gives rise to strong reproach for lack of care”.243 In the Full City, the court found that the master had infringed the provisions of the Ship Safety Act by his failure to warn the authorities first that the vessel was drifting with an increasing likelihood of grounding and second that the vessel had actually run aground, which only increased the threat of pollution. In the circumstances of the case, the master’s failure to notify the authorities was, in the court’s view, both substantial and grossly negligent. This meant that the criteria for imposing criminal liability under the relevant provision of the Ship Safety Act were met.244 Even though the master did not have much time at his disposal and was busy taking other measures to save the ship when the duty to notify the authorities arose (and an omission in a difficult situation is judged more leniently than where there is time for calm assessment), the court could not excuse his failure to notify the authorities of the emergency because doing so (by simply pushing a button) was easy. The court also made it clear that the master had violated his obligation under the Ship Safety Act to notify the authorities of the danger regardless of whether or not such notification would in fact have altered the course of events (i.e., prevented the grounding and resulting pollution).245 Although the Court of Appeal upheld the charges brought against the master under the Ship Safety Act and the Pollution Control Act, it acquitted the third officer on the charge of infringement of the Pollution Control Act. When discussing the issue of the third officer’s negligence, the court focused mainly on his failure while on watch to ensure sufficient accident-preparedness. In particular, the court discussed whether he should have notified the master (who was resting) that the ship was beginning to drift, instead of only warning crew members working in the engine room. The prosecutors submitted that the third officer’s actions constituted a failure to take “reasonable measures” to prevent pollution within the meaning of the Pollution Control Act.

Section 23 of the Penal Code 2005 (not in force). Rt. [NSC] 1970.1235 Statsadvokat (The Public Prosecutor) mot A. (author’s translation). 244 Full City (Court of Appeal), cited in footnote 230 above, p. 19. 245 In this author’s view, in the Full City, the court may have suspected—although it did not say so expressly in the judgment—that the master’s failure to give notice was in fact intentional (i.e., the master had hoped—assuming he could avert an accident—to cover up the fact that a near accident had occurred). 242 243

266   Part Four In assessing the third officer’s conduct, the Court of Appeal noted that a finding of criminal negligence required a breach of a duty of care. Although this duty of care was to be assessed objectively, it should also be considered in the light of “personal and individual” circumstances.246 In the court’s view, this meant that some weight should be attached to the third officer’s youth and lack of experience. In particular, the court found it relevant that the third officer had needed special supervision by the master. According to the ISM instructions on board the Full City, the master had been required to accompany the third officer while the latter was on watch, as this was his very first voyage.247 The court also took into account the strict hierarchy observed on Chinese vessels, which discouraged crew members from communicating with the master while he was off duty. The court considered that the master’s failure properly to follow up an inexperienced third officer, as well as the master’s failure to take measures to prevent the disaster, had contributed significantly to the third officer’s failure to act in the complex situation that had arisen that night. This prompted the court to conclude that the third officer’s failure to notify the master of the emergency did not amount to negligence punishable under Section 78(2) of the Pollution Control Act. It is relevant to note here that Norwegian criminal law generally aims only to criminalize serious violations. The preparatory materials indicate that, in general, only “significant” violations of safety requirements should be prosecuted. Accordingly, insignificant infringements are unlikely to attract criminal liability.248 This principle is also taken into account by the courts when applying criminal sanctions for violations of the Pollution Control and Ship Safety Acts.249 Thus the Ship Safety Act generally requires a violation to be substantial in order to give rise to criminal liability. In an earlier case, it was clarified that the threshold of “substantial” did not relate to the degree

Full City (Court of Appeal), cited in footnote 230 above, p. 17. The Court referred to the ISM instructions on board the Full City, which had provided for such routines on the bridge. 248 See the Proposal by the Ministry of Trade and Industry to the Storting [the Parliament] for the adoption of the Ship Safety Act (Ot.prp. 87 (2005–2006) Om lov om skipssikkerhet), para. 5.1, p. 79 et seq. De-criminalization has also been an important objective of Norway’s new criminal legislation, as expressed in the 2005 Penal Code (not in force), which removed a range of violations from the scope of criminal conduct: see the Proposal by the Ministry of Justice to the Storting for the adoption of the Penal Code (Ot.prp. no. 90 (2003–2004) Om lov om straff (straffeloven)). 249 Under Section 78(3) of the Pollution Control Act, prosecutions will only be brought for “insignificant” pollution incidents at the request of the pollution authority. 246 247

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of negligence, but should rather be applied by reference to the obligations imposed on the master.250 What criterion should be used to establish whether a violation is “significant” (“substantial”)? As a starting point, there is no fixed threshold and so significance must be assessed on a case-by-case basis. In all cases, intentional conduct will be considered significant within the meaning of criminal law. An intentional discharge of polluting substances, especially in cases when the accused was aware of the harmful consequences for the environment, will generally be viewed as a particularly serious offence.251 Thus in a case involving an intentional discharge of chemicals into a salmon-fishing river by a person who was aware of the harmful consequences of such an act, the Court of Appeal considered the intentional nature of the conduct to constitute “aggravating circumstances” within the meaning of the Pollution Control Act.252 In principle, the actual harm caused by an accident should not, in itself, be a prerequisite for criminal liability in environmental cases, as this would undermine the intended deterrent effect.253 The wording of the Pollution Control and the Ship Safety Acts shows that criminal liability is conditional neither on the occurrence of actual pollution nor on the extent of such pollution. Generally a mere “danger” of pollution is sufficient to trigger an obligation to take measures under the Acts.254 Thus both Acts also cover so-called “near accidents”, in that they require the master to notify the authorities even if a mere “danger of pollution” is present. The judgment in the Full City also demonstrates that the extent of the damage caused is, in principle, not decisive for the purposes of establishing criminal liability under the Ship Safety Act (although it may be relevant for determining the severity of the sanction to be imposed).255 The decisive factor was rather the finding that omissions by the master with respect to measures “fundamental for safety on board the ship” were “undoubtedly substantial”

The judgment of the Supreme Court of 22 December 2010. Rt. [NSC] 2010.1608 Oceanwide Expeditions B.V. mot Den offentlige påtalemyndighet (the Public Prosecutor) (Aleksey Maryshev). 251 The Court of Appeal in Agder, judgment of 12 August 1999. RG. [NCA] 2000.411 A mot Den offentlige påtalemyndighet (the Public Prosecutor). 252 Ibid. 253 Cohen (1991–1992). 254 For the purposes of the Pollution Control Act, a pollution violation that threatens major damage or nuisance is sufficient to result in a penalty of up to two years’ imprisonment: see Section 78(2) of the Pollution Control Act. 255 As a result of the Full City accident, 300 tons of bunker oil leaked into the sea and polluted about 120 km of the coastline, including bird sanctuaries and special protected areas. 250

268   Part Four in the light of the risks faced by the ship in the prevailing weather conditions and the other circumstances of the case.256 The court of first instance acquitted the third officer of the charges under Section 20 of the Ship Safety Act, which inter alia obliges crew members to ensure proper watch-keeping.257 The court found that the third officer’s conduct had not amounted to a substantial infringement of the applicable provisions of the Act. In its assessment, the court attached particular weight to the fact that it had been difficult for the third officer to discover that the ship was drifting by using GPS and radar, as well as to the fact that he had warned the crew members in the engine room to be reading to start the engine.258 However, the damage caused by the spill may still influence the outcome of the case for the accused because a more severe criminal sanction (up to two years’ imprisonment) applies under the Pollution Control Act if a violation results in actual or threatened serious damage or nuisance, or if there are other especially aggravating circumstances.259 In the Full City, in the court’s opinion, the master must have realized that his ship was in great peril that night, particularly after she began to drift. This placed him under a clear obligation to notify the authorities without waiting for disaster to strike. The court also found that there were “aggravating circumstances” within the meaning of Section 78(2) of the Pollution Control Act in that the master apparently realized (or ought to have realized) the perilous situation, but failed to notify the danger to the coastal authorities. In the Full City, the court attached some weight to the significant extent of the damage caused by the accident in deciding on the criminal sanction to apply.260 The spill caused significant pollution entailing clean-up costs of about NOK 230 million. The fact that the pollution affected a popular summer residential and recreational area may also have been a factor in the rather harsh retributive reaction of both the enforcement authorities and courts against the (foreign) master and third officer, both of whom were initially jailed and subsequently ordered not to leave Norway before their official release against provision of security. The prison sentence imposed on the master of the Full City was six months (commuted to probation).261

The Full City (Court of Appeal), cited in footnote 230 above, p. 18. Section 20(1)(d) of the Ship Safety Act, which refers to Section 15 (Manning and watchkeeping). Criminal sanctions for infringements of Section 20 are set forth in Section 61 of the Act. 258 The Full City (court of first instance),cited in footnote 229 above, p. 20. 259 Section 78 of the Pollution Control Act. 260 The Full City (Court of Appeal), cited in footnote 230 above, p. 20. 261 Cf. the case of intentional pollution of the river cited in footnote 251 above, where the sentence was 120 days’ imprisonment, of which 90 days were commuted to probation. 256 257

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The Full City accident did not have any implications under criminal law for the shipping company. Generally, however, the relevant statutes provide that legal persons, including shipping companies and persons acting “on behalf of shipping companies”, may also be held liable for discharge violations committed by their ships.262 The “shipping company” is defined as the managing company named on the Safety Management Certificate.263 A crucial obligation on the shipping company concerns the implementation of an appropriate safety management system.264 Interestingly, in the Full City, the court considered whether “cultural” factors on the Chinese-manned vessel (such as the strict hierarchy on board) might have contributed to the accident.265 In particular regarding the master’s possible reasons for wishing to conceal a near accident, it could be useful to examine the internal policy of the shipping company in question (COSCO). Although the circumstances of the accident seemed to indicate grounds for criticizing, and possibly penalizing, the shipping company for its poor safety culture and inadequate approach to safety management, the court only referred to the ISM Code when assessing the negligence of the master’s own conduct.266 This was despite the fact that Norwegian law does not preclude corporate criminal liability for environmental violations, including in cases

See Section 64 of the Ship Safety Act. However, the Ship Safety Act is not very clear on this point. While it is clear that persons acting on behalf of the shipping company may be criminally liable, it is less clear whether such liability may also attach to the actual shipping company. See, however, Bugge (2011), p. 315. See also the Supreme Court’s ruling in its judgment of 21 December 2011, Rt. [NSC] 2011.1738 Polardrift AS mot den Offentlige Påtalemyndighet (the Public Prosecutor), where a criminal fine was imposed on a fishing company because unlawful fishing was taking place on its behalf. 263 Section 4(1) of the Ship Safety Act. If the certificate is not available, the owner of the ship will be identified as the shipping company. The owner will also be identified as the “shipping company” if the entity indicated in the Certificate does not exist. To escape being identified as the “shipping company” for the purposes of the Act (and consequently to escape possible criminal liability), the owner may produce documents showing that the operational manager should be identified as the “shipping company”. This requires the consent of the operational manager. 264 Failure to do so will be penalized under Section 58 of the Ship Safety Act. 265 The investigation established that the young third officer, who was keeping watch, had been hesitant to disturb the sleep of the master as the disaster unfolded that night. 266 In the Full City, in determining the objective standard of care to apply to the master’s conduct and his (non-)compliance with safety requirements, the court also referred to the ISM Code and the instructions on board the Full City based on the Code. Both these documents contained relatively concrete rules for safe sailing. 262

270   Part Four where a company exercises insufficient general supervision or fails to make instructions properly known.267 As mentioned earlier, the master of the Full City received a prison sentence, subsequently commuted to probation. The application of a non-­monetary penalty was lawful because the grounding had taken place in Norwegian internal waters and the court (unofficially) considered that this gave it sufficient grounds to assert full jurisdiction. The sanctions applied would have probably been different if the accident had taken place in Norway’s territorial sea or EEZ. The section below examines in more detail the Norwegian rules of criminal jurisdiction in ship-source pollution cases. 10.3  Rules of Criminal Jurisdiction over Perpetrators of Pollution The Ship Safety Act, the Pollution Control Act and the Penal Code contain provisions determining their geographical scopes. Firstly, all three of these statutes apply in full in the territory of Norway to Norwegian and foreign perpetrators of pollution (territorial criminal jurisdiction). Secondly, Norwegian rules on environmental safety, prevention of shipsource pollution and criminal liability for unlawful discharges set forth in the Ship Safety Act apply to all Norwegian ships within and outside territory of Norway. However, the Pollution Control Act applies to Norwegian vessels within the outer limits of the Norwegian EEZ (and to foreign vessels only within the outer limits of Norwegian territorial waters).268 Thirdly, Norwegian criminal jurisdiction extends to Norwegian nationals and residents, as well as to foreign nationals who have committed crimes outside the territory of Norway (extraterritorial criminal jurisdiction), provided certain conditions are met. The discussion in this section begins by examining Norwegian rules regulating territorial criminal jurisdiction over the perpetrators of ship-source pollution. The territorial principle of jurisdiction under international law subjects foreign ships in Norwegian internal waters and ports fully to Norwegian jurisdiction. Vessels suspected of discharge violations may be inspected and

See Bugge (2011), p. 315. Corporate criminal liability is envisaged in Section 3a of the 1902 Penal Code and Sections 27 and 28 of the 2005 Penal Code (not in force). See also the judgment of the Supreme Court of 28 November 2007 in Rt. [NSC] 2007.1684 Den offentlige påtalemyndighet (The Public Prosecutor) mot Teknotherm AS. Where a foreign company has no links to Norway (e.g., no Norway-based affiliate), it may be rather difficult to conduct proceedings in practice. 268 Section 3 of the Pollution Control Act. 267

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detained in order to allow investigations to be undertaken and, if appropriate, proceedings instituted.269 Reciprocal obligations towards the flag State (these may inter alia be reflected in a bilateral treaty) may be taken into consideration when considering whether to take enforcement action against a foreign ship.270 Generally, Norway follows the non-interventionist so-called “French” approach and will not intervene where offences are committed within its internal waters by foreign citizens on board foreign vessels unless Norwegian interests are affected.271 Usually, however, a ship-source pollution incident in Norwegian waters will significantly affect Norwegian interests (i.e., environmental interests).272 Practice shows that the public prosecution authorities are likely to react where a pollution incident involving a foreign vessel causes significant damage to the Norwegian coastline.273 Norwegian law expressly provides for the territorial application of Norwegian criminal law to ship-source pollution offences committed by foreign vessels. Thus, Section 12(1) of the Penal Code provides that Norwegian criminal law applies to acts committed “in the realm”.274 Although the Code does not define “the realm”, Norwegian territory includes not only mainland Norway, but also Jan Mayen, Svalbard and Norwegian dependencies.275

Tønnesen (1975) Vol. I at 1.181. Ibid., Vol. II, at 3.37. Reciprocity considerations are also important in the context of the provisions on jurisdiction in the Penal Code of 2005: see the Proposal for the adoption of the Penal Code, cited in footnote 248 above, p. 175. See also the Agreement between Norway and Soviet Union [now the Russian Federation] on Shipping, (Moscow on 26 May 1998, entered into force on 30 September 1999), 1999 O.M.S. 956. 271 Tønnesen speaks of a Norwegian “custom” of non-intervention: Tønnesen (1975), Vol. II, at 3.34–3.35. See also Fleischer (2005), p. 110; Bjerke and Keiserud (2001), Bind I, p. 43, and Jessup (1927) pp. 162–163. 272 Other exceptions from this non-interventionist approach may be based on the nationality of the offender (where the offender is a Norwegian citizen) or the serious nature of the offence. 273 I.e. the Full City and the Arisan. 274 See also Section 12(a)(2) of the Code, which provides that the ne bis in idem rule set forth in Section 12(a)(1) of the Code will generally not apply with respect to conduct committed within the realm (including on board Norwegian vessels on the high seas), unless the prosecution was instituted in the foreign country upon the request of the Norwegian authorities. 275 Cf. Section 4 of the 2005 Penal Code (not yet in force). See also Territorial Waters and Contiguous Zone Act, 2003 (Lov 27.juni 2003 no. 57 om Norges territorialfarvann og tilstøtende sone). On the use of straight baselines and the establishment of a 12-nauticalmile territorial sea off Norway see, e.g., Fife (2004). The legal regime for Norwegian dependent territories is regulated by Act No. 3 of 27 February 1930 (Act on Bouvet Island, Peter I Island and Queen Maud Land (Lov om Bouvet-øya, Peter I’s øy og Dronning Maud 269 270

272   Part Four Section 2(1) of the Ship Safety Act applies both to Norwegian and foreign ships, while Section 3 specifies in its second paragraph that Subject to limitations following from international law, the Act shall apply to foreign ships: (a) in Norwegian territorial waters, including Svalbard and Jan Mayen; (b) in the Norwegian exclusive economic zone; and (c) on the Norwegian continental shelf.276

Thus the concept of Norwegian “territory” and “waters under Norwegian jurisdiction” for the purposes of the Ship Safety Act logically corresponds to the concept established in the Penal Code. Criminal jurisdiction may also be exercised on the basis of the objectiveterritorial or “effects” principle in cases where the offence has been committed in several States.277 For the purposes of criminal enforcement vis-à-vis foreign ships, there is a considerable difference between the coastal State’s authority in its internal waters and in its territorial sea. Thus, as the case of the Full City showed, the Norwegian courts will not consider themselves bound by the restrictions envisaged in Article 230 UNCLOS if the foreign vessel has committed a violation within the internal waters.278 In its territorial sea, however, Norway will be bound by the safeguards contained in UNCLOS, including those envisaged in Article 230. To reiterate, Article 230(2) UNCLOS provides, Monetary penalties only may be imposed with respect to violations . . . committed by foreign vessels in the territorial sea, except in the case of wilful and serious act of pollution in the territorial sea.

Land m.m. (bilandsloven). See also Ruud/Ulfstein (2006), pp. 138–140; Cameron (1994), p. 181. 276 See also Norwegian MARPOL Regulation (cited in footnote 201 above), para. 1–1. Article 1 of the previous law (the Seaworthiness Act of 1903) excluded Jan Mayen and Svalbard from its scope and delegated to the King the authority to apply the Act to foreign vessels located in Norwegian waters. See also Report of 30 June 2005 by the Ship Safety Committee appointed by the King’s resolution of 24 October 2003 to the Ministry of Trade and Industry “On the new ship safety legislation” (NOU 2005: 14 På rett kjøl), p. 94. 277 See the last sentence of Section 12(4) of the 1902 Penal Code, which provides that where the criminality of an act is conditional on the nature of its actual or intended effects, such act may be regarded as having been committed in the place where the effects were produced. Cf. Section 7 of the 2005 Penal Code (not yet in force). See also Cameron (1994), pp. 181–182. 278 Unofficially the international law implications probably will be considered by the authorities and courts. On Norwegian jurisdiction with respect to internal waters generally see also Ruud/Ulfstein (2006), pp. 148–149.

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In the Arisan,279 the Norwegian court had an opportunity to decide on the applicability of Article 230 UNCLOS to a pollution accident that took place in the territorial sea. On 12 January 1992, an overladen (by 3 522 tons) Panamanian-registered bulk carrier, the Arisan, suffered an engine failure and grounded off the Norwegian coast just outside the baselines. The ensuing oil spill caused significant pollution (in total 150 tons of crude oil leaked from the wreck, polluting 2 025 km of the coastline). In particular, a large number of birds were killed or injured as the accident occurred close to a bird sanctuary. The South Korean master was detained and held in custody pending trial. Following trial, the master received a 30-day prison sentence (with allowance for 10 days’ pre-trial detention) and a fine of NOK 30 000 for violations of the Pollution Control Act, the Seaworthiness Act 1903 (then in force) and related regulations, and the Penal Code. The master appealed against the sentence on the basis of alleged legal and procedural errors. In particular, the master’s lawyers argued that the court of first instance when sentencing had not taken sufficient account of Article 230 UNCLOS.280 At the time of the accident and the proceedings, Norway had signed but not yet ratified UNCLOS, which in any event was not yet in force.281 The master argued that since he had been charged with negligent (i.e., non-intentional) pollution of the territorial sea, there were “good reasons” to suggest that the principle set forth in Article 230 UNCLOS should apply. Accordingly, a monetary fine, not imprisonment, would have been the correct penalty. The Norwegian Supreme Court heard the appeal and rejected the master’s arguments. The discussion below focuses on the Supreme Court’s examination of the types of penalties that could lawfully be applied to the master in the light of the restrictions imposed by Article 230 UNCLOS. The two dissenting judges, Supreme Court Justices Smith and Dolva, pointed out that, even though UNCLOS was not yet in force and Article 230 UNCLOS was not considered to represent applicable international (customary) law,282 Norway had not objected to the provision in principle, which accordingly should be given substantial weight when deciding on the applicable penalty under domestic law (i.e. Section 78 of the Pollution Control

Rt. [NSC] 1992.1578 Påtalemyndigheten (Public Prosecutor) mot A (M/S Arisan). Following the judgment of the court of first instance, the master left Norway for good. 281 At the time a few more ratifications were required for the Convention to enter into force. 282 According to the statement of the Norwegian Ministry of Foreign Affairs referred to in the judgment. 279 280

274   Part Four Act).283 The dissenting judges also noted that the focus (generally) should be on monetary penalties for the purposes of this provision of the Pollution Control Act, although imprisonment should also be imposed where appropriate according to the circumstances of this case. In their view, however, the penalty imposed in this case should not have deviated from the generally accepted international rule. Supreme Court Justice Dolva also noted that one objective of Norway’s official position with regard to the application of criminal penalties to seamen sailing on foreign vessels in Norwegian waters was to avoid creating corresponding problems for Norwegian sailors abroad. Despite this, the judge emphasized that the issues at stake concerned not only the protection of Norwegian interests but also the development of international rules. Although he agreed with the lower court that the conduct of the master was generally worthy of punishment, in his view imprisonment was not applicable.284 The judge noted, however, that the fine imposed on the master should be substantial. The Supreme Court decided, however, by a three-to-two majority, that the case involved an act of pollution so serious that mere monetary penalties were not appropriate, especially since UNCLOS was not yet binding on Norway.285 Yet the majority agreed with the dissenting judges that the limitations imposed by Article 230 UNCLOS—which would also benefit Norwegian vessels involved in accidents in foreign jurisdictions—should be taken into account by the Norwegian courts when deciding on the types and levels of penalty applicable in pollution cases involving foreign ships. However, since Article 230 UNCLOS was not yet binding on Norway, the court did not give decisive weight to these considerations and upheld the sentence of imprisonment. It should be noted that insofar as types of sanctions are concerned (cf. the restrictions in Article 230 UNCLOS), when implementing UNCLOS into national criminal law provisions, the Norwegian legislator chose to refer generally to international law,286 instead of incorporating express limitations

See the Proposal to the Storting for a law concerning amendments to the Penal Code in relation to international law—implementation of requirements under UNCLOS into Norwegian criminal legislation (Ot.prp. no. 42 (1995–1996) Om lov om endringer i straffeloven (forholdet til folkeretten—gjennomføring av havrettskonvensjonens krav til straffelovgivningen), para. 6.3. 284 In considering an appropriate penalty, however, the judge did take account of the fact that the accused had initially been placed under pre-trial detention before having to surrender his passport and being required to comply with a reporting obligation. 285 Judges Skåre, Hellesylt and Gjølstad. 286 See Section 1 of the 1902 Code and Section 2 of the 2005 Penal Code. 283

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on the use of non-monetary penalties into the specific provisions on prohibited conduct (i.e., Article 152b of the Penal Code and Chapter 10 of the Pollution Control Act). The reason for this approach was not to exclude the limitations under Article 230 UNCLOS but to signal to potential perpetrators that pollution offences were viewed very seriously.287 However, the Ship Safety Act states expressly that “[i]mprisonment cannot be imposed when the violation is only punishable by fines under international law”.288 The territorial principle of criminal jurisdiction set forth in Section 12(1)(d) of the Penal Code also gives Norway jurisdiction over acts committed on any Norwegian vessel on the high seas. The definition of a “Norwegian” or a “foreign” ship is generally based on formal criteria, i.e., the fact of registration in a Norwegian or foreign ship register. Thus Norwegian ships will be those registered in either the Norwegian Ordinary Register or the Norwegian International Register.289 The provisions of the Penal Code that are relevant to shipping are mainly designed to catch crimes committed by Norwegian vessels on the high seas where no other State may exercise jurisdiction to impose penalties.290 Thus in the case of the Bow Eagle,291 Norway exercised its criminal jurisdiction with respect to the master of a Norwegian-flagged chemical tanker that collided with a French fishing boat in the Bay of Biscay. The French boat sank and four of its seven crew members drowned. Meanwhile, the Norwegian ship attempted to flee the scene without rendering assistance to the crew of the stricken vessel. Criminal proceedings were instituted in Norway, as the flag State of the delinquent ship (in line with Article 97 UNCLOS), and the master of the Bow Eagle (a Philippine national) was sentenced under the relevant provision of the Norwegian Penal Code (1902) for failing to render assistance to persons at sea who were in danger following a collision. The Penal Code also provides, in Section 12(2), that Norwegian criminal law applies to acts committed on board a Norwegian vessel, wherever it may See the Proposal to the Storting for a law concerning amendments to the Penal Code in relation to international law—implementation of requirements under UNCLOS into Norwegian criminal legislation), cited in footnote 283 above, para. 6.3.3. 288 Section 69(3) of the Act. 289 On the Norwegian ship registers, see Falkanger, Bull and Brautaset (2011), p. 49 et seq. 290 The Penal Code of 1902 expressly envisages in Section 12(1)(d) its application to Norwegian vessels on the high seas. Cf. Section 3(1) of the Ship Safety Act and Section 4(2) of the Penal Code (2005). Although the new Penal Code of 2005 (not in force) does not refer expressly to conduct on “the high seas” (see Section 4 (2)(c)), the principle remains the same: see Matningsdal (Norsk lovkommentar). See also the Proposal for the adoption of the Penal Code, cited in footnote 248 above, para. 30.1 p. 401 (2). 291 Judgment of the Supreme Court of 12 May 2005. Rt. [NSC] 2004.819 A mot Den Offentlige påtalemyndighet (the Public Prosecutor) (the Bow Eagle). 287

276   Part Four be, by a person travelling on the vessel (e.g., a crew member or a passenger).292 This rule excludes from the scope of Norwegian criminal jurisdiction any person who is incidentally present on board a Norwegian vessel and commits an offence while the vessel is in the port or waters of another State. The distinction between Section 12(1)(d) referred to above (jurisdiction on the high seas) and Section 12(2) is that the former provision subjects any person who comes on board a Norwegian ship (not only passengers and crew members) to Norwegian criminal jurisdiction. The Ship Safety Act also provides that it applies to Norwegian ships irrespective of where they sail.293 In contrast to the Pollution Control Act (which applies to Norwegian vessels only within the outer limits of the Norwegian EEZ), the Ship Safety Act does not envisage any geographical limitations on its application to Norwegian-flagged ships and their crews (irrespective of crew members’ nationality). Violations of the Ship Safety Act’s safety provisions will generally remain under the jurisdiction of Norway, as the flag State, even though this jurisdiction may have to be shared with port and coastal States, as envisaged in UNCLOS. The Ship Safety Act makes it clear that, in contrast to the inspection of foreign vessels in Norwegian ports and coastal waters, which is voluntary, the supervision of Norwegian vessels is mandatory. The supervision of Norwegian vessels shall include inter alia an inspection of compliance with the environmental safety requirements set forth elsewhere in the Act.294 However, insofar as enforcement is concerned, the Norwegian authorities generally will not have authority under international law to implement enforcement measures such as detention against a Norwegian-flagged ship in a foreign port or in foreign territorial waters. Such measures may only be undertaken by the port or coastal State, unless such State has consented to the exercise within its territory of jurisdiction by the flag State.295 Apart from the territorial and flag-State principles of jurisdiction, Norwegian criminal law also envisages the exercise of jurisdiction on the basis of

Section 12(2). Cf. Section 4(2)(c) of the 2005 Code (not in force). Section 3 of the Ship Safety Act. 294 The supervision and inspection of Norwegian and foreign vessels is regulated in Chapter 7 of the Ship Safety Act, as well as in regulations that lay down more detailed rules relating, in particular, to the frequency, contents and scope of the inspections: see the MARPOL Regulation, cited in footnote 201 above. The Act also imposes an obligation on shipping companies to request inspections of Norwegian ships where this is necessary in order to comply with the requirements of, or requirements arising pursuant to, the Act: see Section 43(4). On official supervision of Norwegian and foreign vessels and on classification societies generally, see also Falkanger, Bull and Brautaset (2011), p. 81 et seq. 295 Tønnesen (1975) Vol. I at 1.167. 292 293

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nationality (the active personality principle). Generally, the State of nationality also has authority under international law to prosecute the ship’s master or other members of the crew in cases involving casualties on the high seas.296 However, while the provisions on jurisdiction in ship-source pollution cases set forth in Part XII UNCLOS do not rule out the jurisdiction of the State of nationality, UNCLOS does not contain any mechanisms to allow the State of nationality to interfere in proceedings in the same way as a flag, port or coastal State. Can a Norwegian national be prosecuted under Norwegian law for a pollution violation committed while sailing on a foreign-flagged vessel (e.g., as master or crew member)? As a starting point, the Penal Code applies, subject to certain conditions examined below, to conduct committed abroad by a Norwegian citizen or person resident in Norway.297 Section 12(3)(a) of the Code contains a list of offences that will trigger criminal liability under the Code if committed by nationals or residents of Norway. This list includes inter alia crimes dealt with under Chapter 14 “Felonies against public safety” of the Code, thereby encompassing serious environmental crime (Section 152b). Section 12(3) also catches acts committed by Norwegian nationals abroad that are listed in its paragraphs (b)–(h). In particular, Section 12(3)(c) provides that the Code also applies to an act “also punishable under the law of the country where it was committed.” Section 12(3)(f ) catches conduct causing damage to submarine cables and pipelines, as required by Article 113 UNCLOS.298 Thus the application of Section 12(3) to Norwegian nationals involved in serious environmental crime abroad is not entirely precluded, although no enforcement practice in this regard has emerged so far. Under the new Penal Code (not in force), the principal restriction on jurisdiction on the basis of nationality is imposed by the double-criminality rule in Section 5(1), whereby jurisdiction may only be exercised where the conduct in question “gives rise to criminal liability also under the laws of the country where it was undertaken”.299 In general this rule will not apply

Article 97 UNCLOS. Section 12(3) of the Code. Cf. Section 5(3) of the 2005 Penal Code which also covers acts committed on behalf of a company registered in Norway. 298 This section also does not envisage Norwegian jurisdiction to institute criminal proceedings against a Norwegian master whose vessel is involved in a casualty on the high seas. (Such jurisdiction would be in line with Article 97 UNCLOS, which provides, as an alternative to flag State jurisdiction, for the jurisdiction of the State of nationality to undertake such proceedings.) 299 The crimes need not be identically formulated under the laws of the two States, but the conduct must also satisfy the criteria for criminal liability under the foreign State’s law: 296 297

278   Part Four where the crime has been committed outside any State’s jurisdiction (i.e., on the high seas).300 Neither the Ship Safety Act nor the Pollution Control Act expressly envisages the exercise of Norwegian jurisdiction on the basis of the nationality of perpetrator. The fact that the 2005 Code also catches crimes committed “on behalf ” of a company registered in Norway, may, in principle, extend Norwegian jurisdiction to serious pollution violations (i.e., serious environmental crimes within the meaning of the Code) committed abroad by foreign-flagged ships owned by Norwegian companies. This may make it possible for Norway to prosecute shipowners directly for serious environmental crimes committed abroad where the flag State is not willing to enforce effective and adequate penalties. In this respect, as long ago as 1975 Tønnesen noted that “it may have been reasonable in individual cases to allow for the possibility of applying Norwegian criminal procedural powers with respect to these ships [i.e., Norwegian-owned vessels that were outflagged to flags of convenience that would not ensure effective enforcement—A.P.] in the same way as to ships that were actually Norwegian”.301 Otherwise some ships may in practice become a “vacuum juris”, contrary to the intentions of international legislators. How do Norwegian law and policy address the exercise of extraterritorial criminal jurisdiction over foreign perpetrators of ship-source pollution? As a starting point, Norway claims extraterritorial jurisdiction over its own and foreign nationals, but not without certain restrictions. In any event, universal jurisdiction of unlimited scope (i.e., over any crime committed anywhere in the world by foreign nationals) is not accepted. Other States’ sovereignty is an essential factor that the Norwegian authorities will consider when bringing a prosecution of an offence committed within another State’s territory.302 Generally, prosecutions should only be brought against Norwegian or foreign nationals for crimes committed abroad where necessary for “general reasons”. According to preparatory works to the 2005 Code, the factors to be

Matningsdal (2011). According to Section 5(6) of the 2005 Penal Code, a sanction imposed on a Norwegian citizen who has committed a crime abroad may not exceed the maximum legal sanction applicable for equivalent conduct in the State where the conduct occurred. 300 Section 5(2)(7) of the 2005 Code (not in force). 301 Tønnesen (1975) Vol. I, at 1.182. In practice, States of nationality do not assert their jurisdiction to prosecute the perpetrators of pollution, and, in the author’s view, Norway is also unlikely to do so. 302 Proposal for the adoption of the Penal Code, cited in footnote 248 above, para. 13.5.2, p. 174.

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considered are the seriousness of the crime, the nature of the offender’s connection to Norway and the extent to which the conduct affects Norwegian interests. It should be noted that the preparatory works focus mainly on the relevance of Section 5 to war crimes and similar offences and emphasise that extraterritorial criminal jurisdiction should be exercised cautiously.303 In any event, Norway is also entitled to exercise its criminal jurisdiction over foreign-flagged perpetrators of pollution, subject to the limitations and conditions set forth in UNCLOS and international law generally. As a starting point, this means that Norwegian criminal law should be applied to foreign vessels in such a way as to avoid conflicts with international law.304 As discussed above, Norway is entitled to exercise jurisdiction over foreign perpetrators of pollution within its internal waters and territorial sea. Insofar as criminal jurisdiction over foreign vessels in the EEZ is concerned, Norway will only assume jurisdiction over violations in the EEZ which harm those interests protected by Norwegian jurisdiction. Thus, not all violations involving foreign ships in the Norwegian EEZ will be subject to Norwegian criminal law. Also, the mere fact that the conduct in question affects Norwegian interests in the area will not be sufficient grounds for exercising jurisdiction unless the affected interests are protected by legislation concerning the relevant maritime zone. In contrast to the 2005 Code, which expressly provides for Norwegian criminal jurisdiction within the EEZ (provided that harm has been suffered by relevant interests), the 1902 Code does not contain jurisdictional rules applicable to conduct in Norway’s EEZ. Environmental (and other) violations committed in the EEZ are instead regulated in the Exclusive Economic Zone Act.305 The “interests protected by Norwegian jurisdiction” are not defined in the 2005 Penal Code, but in line with UNCLOS relate to Norway’s right to the natural resources of its EEZ, as well as the protection of the marine environment. Court practice supports this narrow interpretation of

Ibid., para. 30.1, p. 404. Andenæs (2009), p. 9. Section 2 of the 2005 Penal Code reflects the restrictions envisaged in UNCLOS which must be taken into account when applying criminal sanctions: i.e., Articles 73 (fisheries), 228 and 230 thereof. See also the Proposal for the law concerning amendments to the Penal Code in relation to international law—implementation of requirements under UNCLOS into Norwegian criminal legislation, cited in footnote 283 above. 305 Act no. 91 of 17 December 1976 concerning the Norwegian Exclusive Economic Zone (The Exclusive Economic Zone Act) (Lov 17.des. 1976 no. 91 om Norges økonomiske sone) establishing a 200-nautical-mile EEZ. 303 304

280   Part Four jurisdictional rules.306 The preparatory works to the 2005 Penal Code also mention environmental protection as an interest that should be protected.307 Thus, ship-source pollution violations in the EEZ will generally fall within the scope of Norwegian criminal jurisdiction. The Ship Safety Act provides for a corresponding basis for jurisdiction over foreign vessels in the EEZ, but does not make the exercise of jurisdiction expressly conditional on harm to Norwegian interests. The preparatory works to the Act do point out, however, that Chapter 10 of the Act (sanctions for safety infringements) should be applied mainly in cases where: 1) the conduct of a foreign vessel infringes interests protected by Norwegian jurisdiction;308 or 2) where the violation is not covered by the jurisdiction of the flag State (e.g., where the flag State’s laws do not apply within other States’ EEZs).309 Do the Ship Safety Act or other relevant statutes authorize the criminal prosecution of foreign vessels in cases where pollution violations are committed outside the Norwegian EEZ (i.e., on the high seas or in other States’ waters)? In principle, in line with the general Norwegian policy on extraterritorial criminal jurisdiction, any extension of the territorial scope of the Act to cover foreign vessels on the high seas and within other States’ territories should be undertaken cautiously and only in exceptional cases. Generally, protection of the principle of legal certainty imposes certain restraints on the extraterritorial reach of Norwegian criminal law. This is because, logically, it will be very difficult or impossible for individuals abroad to assess whether a particular act or omission will constitute a crime under Norwegian law.310 In international sectors such as shipping, where seafarers are potentially exposed to liability in an indefinite number of foreign jurisdictions,

Cf. Section 4(2)(b) of the 2005 Penal Code (not yet in force) which expressly addresses Norway’s jurisdiction in the EEZ. See also Proposal for the adoption of the Penal Code, cited in footnote 248 above, para. 13.5.4.4. According to the Supreme Court, the application of Norwegian jurisdiction in Norway’s EEZ to other cases would extend Norway’s authority beyond what was intended by the law-maker and would encroach on the flag State’s jurisdiction. (See the Supreme Court judgment of 30 June 1999, Rt. [NSC] 1999.999 Urszula Miegon mot Lamda Sea Shipping Co. Ltd where the Supreme Court did not accept that Norway had jurisdiction to hear a compensation claim by third-State nationals in relation to a casualty involving a foreign vessel in the Norwegian EEZ that had caused the deaths of crew members who were nationals of a third State). 307 Proposal for the adoption of the Penal Code, cited in footnote 248 above, para. 13.5.4.4. 308 Ibid., p. 180 (2). 309 Proposal for the adoption of Ship Safety Act, cited in footnote 248 above, p. 80. 310 See also Proposal for the adoption of the Penal Code, cited in footnote 248 above, para. 13.5.2.1., p. 175. 306

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the protection of the principle of legal certainty is particularly important. Even so, a discharge violation on the high seas could constitute a case where Norwegian criminal law could or should be applied.311 Firstly, a pollution violation committed by a foreign vessel beyond the waters under Norway’s jurisdiction (in particular, pollution caused by an accident), could affect Norway’s coastal waters and marine environment, thereby warranting the exercise of jurisdiction. Secondly, Norway’s jurisdiction as a port State to institute, where appropriate, criminal proceedings with respect to discharge violations on the high seas or in other States’ waters is envisaged in Article 218 UNCLOS. Such jurisdiction requires, however, the existence of a corresponding legal basis in Norway’s domestic law. As a starting point, Section 3(2) of the Ship Safety Act provides that the King (in practice, the competent ministry) may issue regulations extending the application of the Act to foreign ships beyond the territorial sea and EEZ to the extent permitted under international law. Thus the Act does not apply automatically to acts committed by foreign vessels beyond the maritime zones under Norwegian jurisdiction. Any such application requires the adoption of an appropriate regulation.312 Nonetheless, the Act envisages the possibility of extraterritorial application in the future. Such a scope of application will be necessary in order to comply with Article 218 UNCLOS and the requirements of EU Directives.313 While Norway’s general criminal law (i.e., the Penal Code) contains provisions that permit, in principle, the prosecution of foreign nationals for crimes committed abroad, Norwegian law-makers did not fully accept the principle of unrestricted jurisdiction as proposed in the Lotus. Generally, the extraterritorial application of Norwegian criminal law to crimes committed by foreigners is permitted where certain factors are present and “general considerations” call for such application.314 Section 12(4) of the Penal Code provides that Norwegian criminal law applies to certain acts committed abroad by foreigners provided that three cumulative conditions are met: 1) the act must be listed in Section 12(4)(a), which includes serious environmental crimes within the meaning of

Proposal for the adoption of the Ship Safety Act, cited in footnote 248 above, para. 7.2.4, p. 42. 312 To the author’s knowledge, no such Act has yet been adopted. 313 See also Report “On the new ship safety legislation”, cited in footnote 276 above, p. 82. 314 The preparatory materials to the 2005 Penal Code (not yet in force) indicate that Norwegian criminal jurisdiction exists in relation to the high seas, insofar as permitted by UNCLOS, assuming that the particular conduct is subject to criminal penalties in Norway: Proposal for the adoption of the Penal Code, cited in footnote 248 above, para. 13.5.4.4. See also the Bow Eagle in footnote 291 above, where Norway exercised jurisdiction in line with Article 97 UNCLOS. 311

282   Part Four Section 152b of the Code; 2) the double-criminality principle must be satisfied; 3) the perpetrator must be permanently or temporarily resident in Norway. In principle, this Section provides an opportunity for the prosecution of foreign nationals for pollution of the marine environment, assuming the conditions of Section 12(4), Section 13315 and Section 152b of the Code are met. It practice it seems likely that only pollution crimes of a quite extraordinary nature will be prosecuted under the Code.316 It should also be noted that Norwegian criminal law, as envisaged in the 2005 Penal Code, applies to conduct that Norway has a right or obligation to prosecute under international treaties or international law generally.317 As clarified elsewhere in this work, UNCLOS and MARPOL do not require the criminalization of ship-source pollution violations, even though criminal liability for pollution is envisaged in many domestic legal systems. Such an obligation is now, however, envisaged in the EU Directives. To reiterate, the EU Directives have a rather broad scope of application that extends to pollution violations committed on the high seas. In addition, the Directives impose more stringent enforcement obligations on port States compared to what is envisaged in UNCLOS. However, as the preparatory works to the new Penal Code of 2005 point out, the harmonization of criminal laws falls generally outside the European Economic Area (EEA) cooperation of which Norway is a member. This means that any EU provisions obliging Member States to criminalize certain types of conduct will generally not be binding on Norway.318 Nonetheless, when considering the implications for Norway of the EU rules on criminal penalties for ship-source pollution, it must not be forgotten that the directives in question were adopted within the framework of the common transport policy. This makes Norway’s implementation of their provisions into domestic law mandatory.319 Accordingly, by virtue of the EU rules, Norway’s criminal law (as envisaged in the new Code of 2005) also applies to pollution violations committed by foreign vessels outside its own

Section 13 of the Penal Code imposes additional requirements. In particular, a prosecution under Section 12(4)(a) can only be instituted where the King have so decided. 316 To the author’s knowledge, no practice yet exists on the application of Section 12(4) to environmental crimes. 317 Section 6 of the 2005 Penal Code (not in force). The 1902 Code does not contain an equivalent rule. 318 Proposal for the adoption of the Penal Code, cited in footnote 248 above, para. 7.1 at p. 83. 319 See also Proposal for the adoption of the Ship Safety Act, cited in footnote 248 above, pp. 59–60. 315

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maritime zones, to the extent permitted under UNCLOS and international law generally.320 Assuming that Norway has jurisdiction to punish discharge violations involving foreign ships, are the Norwegian authorities entitled to interdict such ships (and on what conditions) in order to conduct investigations and, if necessary, institute proceeding to impose penalties? As a starting point, Norway may take such enforcement measures to the extent permitted by international law or agreement with the foreign State concerned. Generally, UNCLOS confirms that Norway may inspect foreign ships that are voluntarily within its ports. Unseaworthy ships may be detained by the Norwegian port authorities. Section 52(1) “Coercive measures in relation to ships” of the Ship Safety Act provides that The supervisory authorities may prohibit a ship from departing from a port or order it to call at a port or stipulate other necessary measures in relation to the ship, if necessary by force, within the limits following from international law, provided that: a) the ship does not comply with requirements in a statute or regulation regarding technical, operational, personal or environmental safety, and the deficiencies clearly constitute a danger to the interests the requirements in question are set to protect; b) the shipping company or anyone in its service prevents the supervisory authorities from boarding the ship to perform an inspection or fails to comply with orders pursuant to section 45 [i.e. provide all necessary information for the performance of the inspection and present ship’s books and other material for the inspection—A.P.]; c) the ship does not carry the necessary certificates.

One important limitation envisaged in UNCLOS is intended to prevent unjustified interdictions of foreign ships transiting a coastal State’s territorial sea or EEZ without calling at a port of the coastal State. Thus, coastal States may not stop, inspect or detain foreign vessels in their maritime zones for no reason (e.g. a discharge violation). With regard to foreign ships in transit, Section 53 “Stopping and boarding ships under way” provides that where there is “reason to suspect” that a ship has violated relevant provisions or regulations, the authorities may stop and board the ship in transit in order to to carry out an inspection within the limits of international law, if necessary, by force.321

And assuming a specific provision imposing a criminal penalty for the conduct is set forth in Norway’s domestic law. 321 Section 53 also applies to Norwegian vessels. 320

284   Part Four Sections 52 and 53 also provides that the King (i.e. the competent ministry) may issue further regulations concerning inter alia the orders the ship has to comply with and the conditions for use of force and the enforcement of orders. Thus Regulation on the inspection, stopping and boarding of foreign vessels on suspicion of environmental violation322 empowers the Norwegian coastal authorities to interdict a foreign vessel in transit through Norway’s maritime zones “where there is reason [reasonable grounds] to suspect that a ship has acted in contravention of relevant international provisions or requirements”, including discharge standards. In such a case, the supervisory authorities may, to the extent permitted under international law, stop and board the ship while it is underway to carry out an inspection with a view to investigating the matter more closely. Such inspections may be conducted not only within Norway’s harbours and internal waters, but also in its territorial sea and EEZ.323 Usually, however, the supervisory authorities will only be empowered to request information concerning the ship’s identity, previous and next port of call and other relevant information that may be necessary to determine whether a violation has taken place.324 Only where such information is either not supplied or is not sufficient or reliable and where the violation has caused or threatens to cause substantial pollution of the marine environment, are the supervisory authorities entitled to stop and board the ship. Even then, the inspection should in general only involve checking the ship’s documents. Only where inspection of the documents reveals either reasonable grounds to suspect that the ship’s condition and equipment are not in fact as documented or that the documents’ contents are insufficient to reach a conclusion as to the violation, may the authorities inspect the ship’s tanks, pipes, engine room and cargo hold and take samples as necessary. Such an inspection may not unnecessarily detain the vessel or cause it unnecessary expense.325 As examined earlier in this work, the interdiction of foreign vessels on the high seas for pollution violations is wholly prohibited, save in exceptional cases (i.e., exercise of the right of hot pursuit). An exception to the general rule prohibiting intervention vis-à-vis foreign ships on the high seas exists in cases where a maritime casualty on the high seas threatens to pollute the marine environment. The Regulation on intervention on the high seas and Regulation no. 850 of 2 July 2007 concerning Inspection, Detention and Boarding of Foreign Ships on Suspicion of Environmental Infringement (Forskrift om undersøkelse, stansing og bording av utenlandsk skip ved mistanke om miljøovertredelse). 323 Ibid., paras 2 and 3. 324 Ibid., para. 4. 325 Ibid., para. 6. 322

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in the Norwegian EEZ in cases of pollution or risk of pollution by oil or other substances resulting from a maritime casualty326 enables the Norwegian authorities to take measures against a ship involved in a casualty in order to prevent or reduce serious pollution. The Regulation does not, however, authorize the undertaking of measures to impose penalties for pollution. In cases where a foreign vessel is suspected of a pollution violation, it may be necessary to detain the vessel and the crew in order to institute proceedings to impose penalties. What security may be required under Norwegian law in respect of the master and the crew? May the Norwegian authorities arrest the master and the crew of a foreign vessel suspected of a pollution violation? If so, what conditions apply? As a starting point, measures to detain the master or other members of the crew against whom criminal charges may be brought may only be taken where there are sufficient grounds for doing so. The Criminal Procedure Code contains provisions regulating the imposition of coercive measures such as arrest and pre-trial detention.327 Thus the master and the crew may only be detained where there are “reasonable grounds” for suspecting that the person(s) in question may flee justice, destroy evidence or influence other suspects or witnesses. Such measures may be necessary inter alia to preserve evidence and to ensure the suspects do not leave Norwegian jurisdiction.328 In practice, however, a range of alternatives to pre-trial detention (jail custody) of the master and the crew are available. Seizure of passports, house arrest or similar ways of preventing repatriation may be less heavy-handed than jail. Such measures are commonly applied to foreign seafarers by other States.329 However, in contrast to the situation where such measures are applied to a State’s own nationals, more detailed consideration should be given to the implications for a foreign national of prevention of repatriation, e.g., extended separation from family etc. In the case of a foreign national, measures to prevent repatriation are likely to be considered equally severe as pre-trial detention. For this reason, the law generally requires the same criteria to be met when imposing alternative

Regulation no. 1061 of 19 September 1997 (Forskrift om inngrep på åpent hav og i Norges økonomiske sone i tilfelle av havforurensning eller fare for forurensning av olje eller andre stoffer som følge av en sjøulykke). 327 Act No. 25 of 22 May 1981 (the Criminal Procedure Code) (Lov om rettergangsmåten i straffesaker (Straffeprosessloven), Chapter 14. 328 Criminal Procedure Code, Sections 170a and 171. See Bjerke (1986) for a more detailed examination of measures relating to the provision of security under Norwegian law. 329 See Section 7.3 above. However, Norwegian practice in this respect is not extensive. The Arisan and the Full City are the only cases known to the author where measures preventing repatriation were applied to masters in pollution cases. 326

286   Part Four measures for preventing repatriation as for pre-trial detention.330 In any event, it will be necessary to weigh the impact on the accused of the different possible measures, as well as considering inter alia the probability and likely duration of any post-trial prison sentence.331 As an alternative to detention, or seizure of passports, monetary security (bail) may be required to ensure the suspects’ attendance at trial.332 Generally, financial security will be preferred to deprivation of liberty. UNCLOS also requires the vessel and her crew to be released upon the posting of a reasonable bond. The Ship Safety Act and the criminal procedure rules do not specify what amount of financial security is sufficient. In any event, it should be large enough to encourage the suspect to appear before the court.333 The Full City provides an example of how a court assessed the appropriate form of security to be provided where a master and crew member were charged with violating safety rules in connection with a pollution accident. In the Full City, the master and the third officer (both Chinese nationals) were initially detained and had their their passports and seamen’s papers seized, preventing them from leaving Norway. Both defendants appealed against the imposition of these measures. In addition, the shipowner offered to pay bail as an alternative to the seizure of passports. The UNCLOS provisions on prompt release were not examined by the courts, which only dealt with the application of the Norwegian rules in this case.334 The court of first instance found that, although there were reasonable grounds to suspect that the master had violated both Section 152b of the Penal Code and the provisions of the Ship Safety Act, the seizure of his papers was disproportionate. In the court’s view, financial security offered a sufficient means for ensuring the master’s return for the main hearing. Accordingly it ruled that a bond of NOK 1 million could be posted as security for the master. With regard to the third officer (who was charged with violating the Ship Safety Act but not the Penal Code), the court once again decided that the requirement for him to surrender his passport was disproportionate.

Criminal Procedure Code, Section 188. See also Bjerke (1986), p. 25. Decision by the Supreme Court’s Appeals Committee of 9 November 2009, Rt. [NSC] 2009.1383 M/V Full City (concerning detention). 332 Criminal Procedure Code, Article 188. See also Bjerke (1986), pp. 26–27. 333 Bjerke (1986), p. 27. 334 In the Full City, the court generally did not examine the limitations imposed under the safeguards provisions of UNCLOS. This was because the accident had occurred within the baselines (i.e., in Norwegian internal waters). 330 331

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Accordingly this requirement was set aside, in this case without any demand for monetary security.335 The prosecutors appealed the decision of the first-instance court on two grounds. Firstly, they argued that the third officer was also under reasonable suspicion of an infringement of Section 152b of the Penal Code ( justifying a requirement for security in general). Secondly, they submitted that there was a clear danger that both of the accused would flee justice. Accordingly the seizure of their passports and seamen’s papers was not a disproportionate measure.336 The Court of Appeal agreed with the prosecutors on both points. In particular, the court (briefly) noted that it could not be entirely sure that monetary security would provide a sufficient incentive for the master to return to Norway. In the court’s view, the continued confiscation of the master’s documents was a necessary and a proportionate measure for ensuring that he did not fail to appear.337 On appeal, the Supreme Court criticized this decision on the grounds that the Court of Appeal had not conducted a sufficiently thorough examination of the proportionality requirement. The Supreme Court also did not find that the Court of Appeal had established a realistic flight risk or examined whether financial security from the shipping company could offer a reasonable alternative.338 The Supreme Court pointed out that the Court of Appeal should have given more detailed consideration to the fact that the third officer was still employed by the shipping company, while the master was receiving a company pension. These factors were likely to encourage the defendants to appear for trial and should have been considered when analysing the consequences for the suspects of failing to return to trial in Norway.339 In addition, the Supreme Court found that the probable overall duration of the case suggested that the suspects would have to remain in Norway for a very long period, and that the lower court had not considered the burden

The court of Nedre Telemark (court of first instance), decision of 3 October 2009 concerning detention (Full City) (unpublished). 336 The master’s lawyer also appealed the decision of the court of first instance on the basis of whether there were reasonable grounds for suspecting that the master had violated the Penal Code. The author’s discussion of the courts’ reasoning focuses only on those aspects relevant to the application of security measures to the master and the third officer. 337 Decision of the Court of Appeal in Agder of 8 October 2009 concerning detention (Full City) (unpublished). 338 The Supreme Court’s Appeals Committee (Full City), cited in footnote 331 above. 339 In this case, the Supreme Court still accepted that the decision of the prosecution authorities was sufficient in this respect. 335

288   Part Four this would impose on their families. The court emphasized that the duration of the pre-detention (prohibition on repatriation) should be compared with the probable sentence (imprisonment).340 In its view, the proportionality of the measures imposed had not been evaluated sufficiently by the Court of Appeal. Consequently the Supreme Court decided to quash the decision of the Court of Appeal with regard to the security measures imposed on the master and the crew.

11  The Russian Federation 11.1  Introduction This Chapter addresses Russian rules of jurisdiction with respect to shipsource pollution and examines the Russian Federation’s domestic provisions on sanctions for the pollution of the marine environment. As a starting point, Russian law prohibits pollution of the environment, including marine pollution from ships. A general prohibition on pollution of the environment is set forth in the Law on the Protection of the Environment341 and corresponding provisions on the protection of the marine environment are also found in a range of other legislation, including federal laws regulating the Russian internal waters, territorial sea, EEZ and continental shelf examined later.342 The general federal prohibition is supplemented by a set of rules issued by the competent governmental bodies. These rules define in more detail permitted discharge levels and related safety obligations.343

As a result, the master and the crew were permitted to leave Norway on the conditions prescribed by the court of first instance, i.e., the shipowner had to put up a bond of NOK 1 million for the master. 341 Federal Law # 7-ф3 of 20 December 2001 (O zashchite okruzhayushchey sredy). The Law applies in the territory of the Russian Federation, as well as in Russia’s EEZ and continental shelf, and lists the protection of the marine environment as one of its objectives: Article 2(3). Its predecessor (the equivalent law of 1991, no longer in force) also contained a definition of environmental (ecological) crime which was not maintained in the new Law. 342 Matters relating to both international sea transport and criminal law fall generally within the federal competence of the Russian Federation and accordingly are regulated in federal laws. Matters relating to environmental protection matters fall within the shared competence of the Federation and the regional authorities and accordingly may also be regulated in regional laws and other acts (which are not relevant for the purposes of this book). 343 Federal laws are implemented by means of various governmental regulations (covered only to a limited extent in this work). In addition, ministerial instructions elaborate and supplement the provisions of these laws. For a discussion of Russian law sources generally see, e.g., Butler (2009). On the environmental law, regulations and policy of the Russian 340

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Pollution of the environment and related violations may be subject to criminal or administrative sanctions. In contrast to Norwegian law, which, in addition to the Penal Code, also contains separate provisions on criminal sanctions in special legislation, criminal liability in the Russian Federation is prescribed by a single statute, the Criminal Code,344 which contains exhaustive provisions on criminal sanctions, including sanctions for environmental offences and ship-source pollution violations. Procedural rules are set forth in the Criminal Procedure Code.345 The Criminal Code consists of two parts, a General Part and a Special Part. The General Part of the Criminal Code sets forth a number of principles and limitations that determine the applicability of the criminal sanctions envisaged in the provisions of the Special Part to particular cases. Importantly for the discussion below, the provisions of the General Part of the Code determine the jurisdictional reach of the provisions on criminal liability. Furthermore, criminal sanctions may be imposed only where there is express provision to this effect in the Code. No criminal sanctions may exceed what is provided for in the Code.346 Violations envisaged in international treaties will only be made subject to criminal penalties where the relevant international provisions are incorporated into Russian law.347 Accordingly, the scope of criminal liability under Russian law for ship-source pollution may be established by examining the provisions of the Criminal Code. Criminal liability in Russia may only be imposed on natural persons who satisfy certain criteria (e.g., relating to age).348 Thus criminal sanctions for ship-source pollution and related violations may not be imposed on legal persons (corporate entities) as such. Legal persons (such as shipping companies) involved in pollution violations or related infringements of safety rules will be subject to the administrative sanctions.349

Federation (as per 2006) see the OECD Report, Environmental Policy and Regulation in Russia: the Implementation Challenge (2006), available at http://www.oecd.org. 344 The Criminal Code of the Russian Federation (Federal Law # 63-ф3 of 13 June 1996) (Ugolovnyy kodeks Rossiyskoy Federatsii). 345 Criminal Procedure Code of the Russian Federation (Federal Law # 174-ф3 of 18 December 2001) (Ugolovno-processual’nyy kodeks Rossiyskoy Federatsii). 346 The principle of legality is incorporated in Article 3 of the Criminal Code. Cf. Article 96 of the Constitution of Norway. 347 However, Kashepov (2005) points out at p. 22 that the international treaties binding on the Russian Federation and defining certain crimes may be applied if the corresponding rule of the Code refers expressly to such treaties (this is the case with war crimes). On international law in the Russian legal system generally see Butler (2006), Zimnenko (2007). 348 Article 19 et seq. of the Code. 349 Administrative sanctions are set forth in Federal Law # 195-ф3 of 30 December 2001

290   Part Four 11.2  Criminal Liability for Ship-Source Pollution Generally, environmental crimes are codified in Chapter 26 of the Special Part of the Criminal Code. This Chapter sets forth provisions on criminal sanctions for a number of crimes against the environment.350 Article 252 “Pollution of the marine environment” of Chapter 26 deals specifically with pollution of the marine environment. This provision applies to the pollution of the marine environment from various sources, including transport, by materials that are harmful to human health and marine biological resources or that impede the legitimate use of the marine environment. Article 252 provides 1. Pollution of the marine environment from sources on land or from vehicles or artificial islands or installations, as a result of violation of the rules applicable to the storage or discharge of substances and materials that are harmful to human health and marine biological resources or which impede the legitimate use of the marine environment,   Shall be punishable by: a fine of up to RUB 200 000, or an amount equal to the wage or salary, or any other income of the convicted person, for a period of up to 18 months; disqualification from holding specified offices or from engaging in specified activities for a term of up to five years; mandatory work for a term of up to 48 hours; corrective labour for a term of up to two years; or imprisonment for a term of up to four months.351 2. The same acts, where they have caused substantial harm to human health, marine biological resources, the environment, recreational zones or other legally protected interests,   Shall be punishable by a fine of up to RUB 500 000, or wages or any other income of the convicted person for a period of up to three years; or corrective labour for a term of up to two years; or deprivation of liberty for the same term with a fine of up to RUB 40 000 or an amount equal to the wage, salary or other income for up to three months.352

Code of Administrative Infringements (Kodeks Rossiyskoy Federatsii ob administrativnyh pravonarushenijah) (not covered in detail in this work). 350 It should be noted that Article 358 of Chapter 34 Crimes against peace and the security of mankind, deals specifically with the crime of ecocide, i.e., the mass destruction of flora or fauna or contamination of the atmosphere etc. This provision would, in principle, also catch pollution of the marine environment if such pollution amounted to an “ecological catastrophe” (the author is not aware of any practice on this provision). 351 Last amended by the Federal Law # 420-ф3 of 7 December 2011. Earlier versions referred to fines in the amount of minimum wages multiplied by a factor of 200 to 500 instead of a specific maximum sum. The fines calculated on the basis of the perpetrator’s income have been made stricter, as the previous version of Article 252(1) envisaged fines in the amount of salary or income of up to five (not 18, as the current version provides) months. Punishment in the form of disqualification has also become more onerous, as the earlier version envisaged disqualification for a period of up to three years. 352 Last amended by the Federal Law # 420-ф3 of 7 December 2011.

Criminal Jurisdiction over Perpetrators of Ship-Source Pollution   291 3. Acts provided for by the first or second part of this Article, and entailing by negligence the death of a person,   Shall be punishable by corrective labour for a term of up to five years or by deprivation of liberty for the same term.

Article 252 does not apply exclusively to shipping activities, but is expressly aimed at environmental violations occurring in the course of all offshore activities. It would, for example, also apply to discharge violations caused by oil extraction and related activities.353 The provision defines a broad range of violations that may result in pollution, including not only discharges, but also violations of rules concerning the storage of harmful substances. A range of other laws examined in more detail later in this section define discharges into the sea that may be subject to criminal penalties under the Code. Article 252 applies to both intentional and negligent conduct (i.e., faultrelated violations) and does not distinguish between different degrees of negligence.354 Strict liability is not accepted in Russian criminal law.355 The interpretation of the concept of negligence under Article 252 was illustrated in the case of Medvedev (2010). On 18 April 2010, the Court of First Instance convicted Medvedev A.L. of violating Article 252(1) of the Code by negligence.356 The defendant worked as a vessel pump operator and was responsible inter alia for loading and fuelling operations. Medvedev’s failure to perform appropriate controls of bunkering operations in the port of Novorossiysk resulted in a spill of mazut (a heavy, low quality oil) into the waters of the port. The judge ruled that defendant had committed the crime of pollution by negligence by virtue of his failure to foresee dangerous consequences that he ought to and could have foreseen in the light of his duties and responsibilities. For the purposes of Article 252(1), a violation does not need to result in significant harm to the environment in order to trigger criminal liability. The Code does, however, generally exclude de minimis violations that would formally be caught by the Code but that are so negligible that they do not represent any danger for society.357 Nonetheless, in contrast to some other

No practice is known to the author with respect to pollution from installations. This applies to criminal liability in general. According to Article 15 of the Code, depending on the nature and degree of the danger posed to society, the crimes covered by the Code shall be divided into four categories ranging from minor to serious. Conduct will be categorised according to the degree of negligence or intent involved, and by reference to the maximum penalty for the offence envisaged by the Code. 355 Article 5 of the Code. 356 Judgment of the District Court (City of Novorossiysk, Lenin district), 18 April 2010, Case number not available. The text of the verdict is on file with the author. 357 Article 14 of the Code. Cf. the criterion of “significance” in Norwegian law in Section 10.2 above. For example, the case of the Strabe involved an infringement of Article 252 of the 353 354

292   Part Four provisions of Chapter 26, it is not sufficient for the purposes of Article 252 that there was merely a danger of (substantial) harm to human health or the environment. The crime of pollution is committed only when the prohibited discharge actually takes place.358 For the purposes of applying Article 252(2) and (3), it is necessary to establish that a discharge has actually taken place and to show that a certain level of (substantial) harm is present as a result. According to a clarification of the definition of harm issued by the Supreme Court, a “substantial negative effect” would generally arise in cases where the offence caused substantial degradation of the quality of the environment and where clean-up would be both lengthy and require significant financial and material input, as well as in cases where certain natural features had been destroyed etc. or where the environment could no longer be lawfully used and maintained.359 In Medvedev, the court established that the total spill from the ship into the waters of the port amounted to 798 kg. The judge considered the highly toxic nature of the substance in question and took into account its specific effects on marine organisms. The judge also assessed the financial consequences of the spill.360 The court concluded that the defendant’s conduct had been sufficiently serious to satisfy the criteria for the crime of endangering

Criminal Code through the negligent discharge of around 50 litres of oil products into the waters of the port of Eysk, causing damage amounting to RUB 300 000. The City Court of Eysk closed the case because the accused pleaded guilty and the crime was held not to be “serious”. The judge did not elaborate on the reasons for the latter finding and hence it is unclear whether the amount of the spill was decisive. However, the judge noted that the closure of the case was also justified by the fact that this was the first time that the accused had committed this offence (judgment published on 7 October 2010. The case number is not available, but the text is on file with the author). Minor violations may also lead to administrative rather than criminal sanctions. 358 Cf. Article 247(1) “Violation of rules for handling ecologically dangerous substances and waste”. This provision also applies to incidents resulting in substantial danger to health or the environment. 359 The Decree of the Supreme Court Plenum of 5 November 1998 # 14 “On court practice with respect to the application of legislative acts on liability for ecological violations” (last amended 6 February 2007), para. 3. See Kashepov (ed.) (2004), pp. 538–539, who criticizes the uncertainty of the notion of “substantial” harm in the Code’s chapter on ecological crimes and argues that, for the purposes of criminal liability, the principle of legality requires more concrete definitions. 360 The court relied on the rules for determining such financial values issued under the Decree # 87 of 13th April 2009 of the Ministry of Natural Resources of the Russian Federation “On the adoption of the methodology for the calculation of damage to water objects caused by infringement of the applicable legislation on water resources” (Prikaz Ob utverzhdenii metodiki ischislenija razmera vreda, prichinennogo vodnym ob’ektam vsledstvie narusheniya vodnogo zakonodatel’stva).

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society. The penalty imposed was a fine determined by reference to the provisions of Article 252(1), which was far less than the cost of the damage caused by the pollution.361 It is also necessary to establish a causal link between the prohibited conduct and the harm to the environment and other protected interests. In this respect, the Supreme Court has pointed out that it is necessary to establish, first, that the pollution was not caused by some other (external) factors, including natural events and, second, whether the pollution would have occurred irrespective of the violation in question. Another relevant factor to assess is whether the pollution was caused by necessity. In addition to Article 252, other provisions of the Criminal Code may apply to ship-source pollution and related violations. Thus, Article 251 addresses “Pollution of the atmosphere”.362 Other provisions deal with violations of safety rules in the transport sector. These are not examined in this work.363 Furthermore, individuals acting on behalf of organizations may be held criminally liable for violations of their official obligations as prescribed by the Code. First, officials of state (public) entities who cause harm to the environment by failing to perform (or inadequately performing) their duties are also caught by the provisions of Chapter 26 of the Code.364 Second, persons who perform similar functions in a private undertaking such as a shipping company may also be caught under the provisions of the Criminal Code, e.g., under Article 201 of the Code, which deals with the misuse of powers contrary to the interests of the entity on behalf of which the person acts.365 The total damage calculated by the court exceeded RUB 2 million, whereas the fine was RUB 70 000. In the case of Korobeynik A.N. of 15 July 2009, which involved similar charges and was decided by the same judge, the criminal sanction applied was a ban on working as an officer on sea-going or river vessels for a period of three years. 362 Russia has acceded to the MARPOL Annex on air pollution (Governmental decree # 203 of 24 March 2011). 363 For example, Article 263 of Chapter 27 Crimes against Traffic Safety and the Safe Operation of Transport Vehicles penalizes violations of rules to ensure traffic safety and the safe operation of rail, air, or water transportation systems where substantial damage results. 364 The Plenum of the Supreme Court pointed out that, in its view, criminal liability under a provision laying down sanctions for ecological violations will preclude liability under other provisions of the Code that do not relate to ecological violations (see footnote 359 above). However, this does not entirely rule out the possibility that the courts will also avoid applying such provisions to cases involving harm to the environment, e.g., Article 293 “Dereliction of duty”: as reported at http://www.regnum.ru (13 March 2006), in Klimov and Volkov (date unknown), a midshipman and a lieutenant colonel were charged with the infringement of both Article 252 and Article 293 by the military court of Vladivostok. Similarly, harbour masters and other representatives of port and coastal authorities may be targeted for wrongful decisions or omissions under the relevant provisions of the Code. 365 The Decree of the Supreme Court Plenum cited in footnote 359 above. 361

294   Part Four The definition of an “official” is extremely important when applying these provisions for the purposes of targeting safety violations by representative of shipping companies. The criterion for imposing of criminal sanctions would be that the person in question has special responsibilities with respect to safety of the vessel.366 According to the Merchant Shipping Code,367 the master (captain) of a vessel is the person principally responsible for all aspects of safety on board, including the protection of the marine environment from pollution.368 The Code does not expressly impose any obligations on the shipping company to take measures to prevent ship-source pollution.369 Such obligations may, however, be found in regulations implementing international obligations with respect to the prevention of ship-source pollution. In the case of Prosecutor Maksimchuk (Kamchatkij Inter-district Environmental Prosecutor’s Office) v. K,370 the master (K) of a foreign reefer vessel was charged and sentenced under Article 253 of the Criminal Code for intentional infringement of the laws regulating the EEZ and continental shelf of the Russian Federation. The vessel, acting on the instructions of K and the shipping company, had illegally accepted crab products from unidentified vessels. (The court found that the crab products were part of the resources of the Russian Federation). K was an experienced captain and was aware that he was contravening the laws on fishing and the exploitation of biological resources in the EEZ. As noted elsewhere in this book, the role of the persons working on board a ship is very important for the enforcement of environmental safety rules in shipping. Otherwise the flag State and coastal State authorities will face considerable practical difficulties in controlling and enforcing such rules when the ship is not in port. As emphasized by the court in the case of K, under Russian law the master has crucial responsibility for the operation of the ship (including the prevention of pollution). He also has authority over all persons on board, while at the same time representing the shipowner.371

On the definition of an “official” see, e.g., Komissarov (2008), p. 336 et seq. The Merchant Shipping Code of the Russian Federation (Federal Law # 81-ф3 of 30 April 1999) is the main piece of legislation of the Russian Federation regulating international shipping. An unofficial English translation of the Code is available at http://folk.uio.no/ erikro/WWW/HNS/rmc.pdf. 368 Article 61 of the Code. 369 Nevertheless, the Code expressly places obligations on the shipping company (sudovladelets) with respect to crew safety and working conditions (see Article 60 of the Code). 370 The verdict of the City Court of Petropavlovsk-Kamchatskiy, Kamchatka region, of 24 March 2010 (on file with the author). 371 See also Articles 61–72 of the Merchant Shipping Code. 366 367

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Article 69 of the Merchant Shipping Code provides the master with general powers to investigate conduct criminalized under Russian law.372 Logically, such conduct includes discharge violations prohibited under Article 252 of the Criminal Code. In addition, the Criminal Procedure Code obliges the master to investigate and, where necessary, institute criminal proceedings in relation to, crimes committed on board a ship on a long-distance voyage. This obligation is triggered when the master learns of the crime.373 The ground for initiating criminal proceedings is availability of sufficient evidence to indicate that a crime has taken place.374 Thus in a case involving a discharge on the high seas, the master will be the only person who has the power under Russian law to initiate an investigation and, where necessary, institute criminal proceedings pursuant to the Criminal Procedure Code. However, the master is also responsible for the clean operation of the ship and has a general duty to avoid pollution under both international and domestic rules. In practice this means that a master who takes the initiative to investigate a discharge violation involving his own ship will face a conflict of interest, as the criminal proceedings may address his own acts and/or omissions. The above-mentioned case of K illustrates the conflict of interests faced by the master, who is responsible both to the shipowner (the shipping company) and also to the States whose interests may be affected. Thus, in addition to applying Article 253 of the Code (violation of the rules regulating the EEZ), the court also ruled that K had abused his authority by acting in excess of his obligations as an employee of the private shipowning company, thereby significantly damaging public interests. Such conduct could not, in the court’s view, be justified by the fact that K had been following the shipowner’s orders.375

See also Ivanov (2002), p. 74 et seq. on the master’s responsibilities. Article 40(3)(1) of the Criminal Procedure Code. E.g., as the result of a crew member lodging a complaint that a crime has been committed; as the result of a confession; or as the result of information received from other sources regarding a committed or planned crime: see Article 140(1) of the Code. 374 Ibid., Article 140(2) and Article 146(1). The master’s decision with respect to criminal proceedings on a ship on a long voyage must be sent to the prosecutor (of the flag State, i.e., Russia in this case) who either uphold or repeal the decision on the prosecution (a more detailed discussion of the procedural considerations is outside the scope of this work). 375 Article 201 “Abuse of authority” of Chapter 23 of the Criminal Code deals with abuses by employees in management positions in profit-making and other (non-public) organizations of their authority in ways harmful to the interests of these organizations as well as to the lawful interests of society or individuals. However, the shipowner in the case of K was also penalised through the imposition of (administrative) sanctions for violations committed by the master in abuse of his authority. 372 373

296   Part Four The Criminal Code also envisages criminal liability (for officials as well as private persons) for obstructing the course of justice, inter alia by interfering by any means with the activities of an investigator, the public prosecutor or the court.376 Would this provision cover an attempt by the master or crew to conceal unlawful discharges by failing to make proper entries in the oil record book, by failing to notify an incident, or by lying to officials inspecting the ship? In contrast to the United States where prosecutions in such cases are very common, there is no Russian court practice on the application of criminal liability for such conduct.377 Nonetheless, some administrative practice from the Russian courts shows that failure to notify an accident may cause administrative sanctions to be imposed on the master and the shipowner.378 Non-compliance with ship safety standards (e.g., technical defects or the use of unsuitable vessels to transport certain dangerous cargoes) and failure to keep proper documentation on board may also result in administrative sanctions for the shipowner.379 11.3  Criminal Jurisdiction over Perpetrators of Pollution In general, the Russian Federation asserts jurisdiction over vessels flying its flag irrespective of where these vessels sail. Thus, Article 11(3) of the Russian Criminal Code provides A person who commits a crime on board a vessel registered in a port of the Russian Federation in the open water or air space outside the territory of the Russian Federation is liable under this Code, unless an international agreement provides differently.380

Russian legal commentators generally refer to the flag State’s jurisdiction as quasi-territorial in nature and agree that Russia has criminal jurisdiction

Article 294 of the Criminal Code. As far as the author has been able to establish. 378 Thus, in the case of the Malyshev, the master concealed the fact of the grounding (caused by negligence and violation of the applicable navigational rules) from the auhorities and only notified the shipowner of the accident. As a result both the shipowner and the master had administrative sanctions imposed on them by the Lenin District Court (Rostov-naDonu), date of verdict unknown (case on file with the author). 379 In addition, the ship may be ordered to comply with the applicable technical and documentary requirements before being permitted to leave port (Article 80 of the Merchant Shipping Code). See, however, Zharkova (2001), who points out that under Russian law the master or shipowner will probably not be subject to sanctions for a vessel’s technical non-compliance with environmental standards, although such liability may attach to the classification-society representative. 380 The same provision is envisaged in Article 2(2) of the Criminal Procedure Code. 376 377

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over vessels covered by Article 11(3) of the Code.381 In any event, Russia will assert its jurisdiction as a flag State if a Russian-flagged ship is involved in a collision or other type of casualty on the high seas.382 However, jurisdiction over Russian vessels in foreign internal and territorial waters will generally lie with the coastal State in question, unless international law provides to the contrary or the coastal State requests the Russian Federation to exercise jurisdiction.383 In addition, Russia will also retain jurisdiction over crimes committed on board a Russian-flagged vessel transiting a foreign territorial sea unless such a crime affects the interests of the coastal State.384 The reference to “a vessel registered in a port of the Russian Federation” (instead of to a “vessel of the Russian Federation” or similar wording) requires more thorough examination. In most cases, the State where a port of registration is located can be assumed to coincide with a vessel’s flag State,385 i.e., a vessel registered in a Russian port will normally sail under the Russian flag, and vice versa. In some circumstances, however, foreign vessels may be registered in a Russian port. Such vessels will then, by virtue of Article 11(3), come within the scope of Russian criminal jurisdiction. Such registration is only permitted where a foreign vessel is under a bareboat charter that is registered in the

See, e.g., Kovalev (2004), p. 132; Ivanov (2002), p. 207 et seq.; Kashepov (ed.) (2005), p. 51, Kruglikov (ed.) (2010), p. 33. See, however, Blum (1974), who points out that the territorial principle of a flag State jurisdiction on the high seas is not accepted by all (then Soviet) legal scholars. 382 See case of the VIRGO in Section 6.2 above. See also Blum (1974). 383 Ivanov (2002), p. 208; Blum (1974). A bilateral agreement may also settle the question of jurisdiction. For example, the agreement of 1974 on merchant shipping between Norway and Russia provides that crimes on board these countries’ vessels in each other’s ports will not be subject to the criminal jurisdiction of the port State (unless the consequences of the crime affect the port State’s interests). 384 Article 27 UNCLOS. 385 See, however, Article 2 “Geographical application of the criminal procedural law” of the Criminal Procedure Code which says in Article 2(2) that the Code applies to Russianflagged vessels sailing outside the territory of the Russian Federation if the vessel is registered in a port of the Russian Federation, thereby suggesting that the flag State and the State do not necessarily coincide for the purposes of Russian criminal jurisdiction. No practice is known to the author to clarify the meaning of the above-mentioned provisions. Cf. the Norwegian Criminal Procedure Code, which refers to the port of registry as merely one of the factors to take into account when assigning authority to investigate to one of the domestic prosecutor’s offices: Section 10(2) of Act No. 25 of 22 May 1981 (Lov om rettergangsmåten i straffesaker (Straffeprosessloven)). See also Roach and Smith (1996), p. 485, suggesting that (in combination with other factors) a ship whose home port does not correspond with her flag may be considered stateless. 381

298   Part Four Russian bareboat register.386 In all other cases, foreign vessels may only be registered in a Russian ship register and in a Russian port following cancellation of registration with the previous flag State. Russian-flagged ships may also be bareboat-chartered to a foreign shipowner or registered in a port of such a shipowner on other grounds, as permitted by local rules. Will such vessels, by virtue of registration in a foreign port, fall outside the scope of Russian criminal jurisdiction altogether? As Russian criminal law should generally be construed narrowly, it is significant in this context that Article 11(3) refers unambiguously to the “port of registration” rather than to the “flag State” or the “Russian ship register”.387 On the one hand, “disclaiming” responsibility for such a vessel would be inconsistent with Russia’s obligations as a flag State under the law of the sea. One possible explanation is that this provision was drafted on the basis of an understanding that all Russian-flagged vessels were registered in Russian ports and was not intended to exclude a certain category of Russian-flagged vessels from the scope of Russian criminal law. On the other hand, as already established, international law does not expressly oblige a flag State to enact criminal liability for ship-source pollution. In principle, it is sufficient for a flag State to establish adequate sanctions—and these can be administrative rather than criminal—for violations committed by its ships. Under this interpretation, only vessels registered in Russian ports would come within the scope of the Criminal Code, raising doubts about the compatibility of this provision with international law. The owner, master and crew of a Russian-flagged vessel registered in a foreign port may only be penalized by the application of administrative sanctions. It is necessary to point out in this respect that the Code on Administrative Infringements contains a more vaguely formulated provision on its geographical reach and does not expressly provide for jurisdiction over Russian-flagged vessels. As well as applying within Russian territory, the Code applies to infringements committed outside Russian territory in cases where such application is envisaged by an international treaty to which the Russian Federation is party.388

Order of the Ministry of Transport # 277 of 9 December 2010 “On the approval of rules for the registration of ships and rights over them in sea ports”. Generally this corresponds to practices in other States with respect to bareboat-chartered vessels. 387 The legal commentary to the Code also reiterates the wording of this provision in general terms without examining its scope in more detail. Importantly, ships are only allowed to sail under one flag. Registration of a Russian-flagged vessel in a foreign bareboat register would generally make the State of such a register, in practice, the flag State of the vessel. 388 Article 1.8 (2) of the Code (last amended by Federal Law # 210-ф3 of 24 July 1997). 386

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Furthermore, as already discussed, international law also provides generally for jurisdiction on the basis of nationality. Indeed, UNCLOS even contains an express provision to this effect in the case of casualties at sea (Article 97), although States of nationality do not appear to avail themselves of jurisdiction in practice. Article 12 of the Criminal Code states that the Code applies to crimes committed by Russian nationals abroad where such crimes affect the interests protected by the Code, e.g., the protection of the environment as envisaged by Article 252 of the Code.389 Under Article 12(1) of the Code, Russia has jurisdiction over a national who has committed such a crime, unless a foreign court has ruled in the case (the ne bis in idem principle).390 The Code does not require the conduct also to give rise to criminal liability under the laws of the State where it was committed.391 Court practice shows that the Russian courts will, in principle, assert criminal jurisdiction over Russian nationals working on board foreign ships, although the cases in question involve violations of fishing rules in the Russian EEZ rather than discharge violations.392 The reference in Article 11(3) of the Criminal Code to an international agreement that “provides differently” suggests that, in certain cases, sanctions for discharge violations by Russian vessels may be prescribed and enforced by coastal or port States, as set forth in UNCLOS. If a Russian national were to be prosecuted and sentenced by a foreign court, the ne bis in idem principle would prevent the Russian courts from trying him again. Of course, Russia may also act as a port or coastal State vis-à-vis foreign vessels and crews suspected of involvement in discharge violations.393 The federal laws that regulate the Russian maritime zones contain rules on jurisdiction and provide that violations by Russian or foreign nationals of rules inter alia relating to the protection of environment may give rise to liability

However, the provision does not include either any express reference to any particular interests or any examples of the protected interests. 390 The same principle is also envisaged in Article 6(2) “Principle of fairness”. The wording of the Russian provision on ne bis in idem is very concise: cf. the corresponding provision in the Norwegian Penal Code, footnote 274 above. 391 See, however, Kashepov (ed.) (2005), at p. 53, who considers that double criminality is required. On the double-criminality principle, see also Section 3.4.2 above. 392 See, e.g., the case of K in footnote 370 above. 393 Generally, the legal regime to protect the Russian internal waters, territorial sea and exclusive economic zone from pollution is established by, respectively, the federal law On the Internal Maritime Waters, Territorial Sea and Contiguous Zone (Law # 155-Ф3 of 16 July 1998) and the federal law On the Exclusive Economic Zone of the Russian Federation (Law # 191-Ф3 of 18 November 1998). 389

300   Part Four under Russian law.394 The criminal sanctions applicable to any particular violation will be determined by the provisions of the Criminal Code.395 Ship-source discharge violations committed within the territory of the Russian Federation fall within the scope of the Criminal Code, irrespective of whether the violation was committed by a Russian or foreign national. According to Article 11(2) of the Code, the territory includes Russia’s territorial sea, continental shelf and EEZ.396 Logically, the provisions of the Criminal Code on territorial scope, as well as its substantive provisions on liability for ship-source pollution should be interpreted in the light of international law. The recognised principles and norms of international law and international treaties to which the Russian Federation is party will generally supersede any conflicting provisions of Russian law.397 As was illustrated in the Amurskoe parohodstvo case, examined later in this section, the Russian courts may disregard the application of a domestic rule altogether if it contradicts a provision of an international treaty that is binding on the Russian Federation. Accordingly, the limitations imposed by the law of the sea and international law generally on coastal and port States’ jurisdiction over foreign perpetrators of pollution will apply to the exercise of criminal jurisdiction by the Russian authorities and courts. Important limitations on a coastal State’s sovereignty in its territorial sea result from the right of innocent passage and the provisions restricting the coastal State’s authority to interdict foreign ships in its territorial sea, as well as in its EEZ and on the high seas. Under UNCLOS, a coastal State may only interfere with a ship transiting its territorial sea or EEZ that is suspected of having committed a discharge violation in one of two situations: 1) where the passage is not innocent, or 2) where the conditions set forth in Article 220 UNCLOS are met. This means that Russia will generally not exercise criminal jurisdiction over persons on board foreign vessels transiting its territorial sea unless the consequences of the crime extend to Russian territory or the other conditions set forth in UNCLOS are met (e.g., a discharge violation is committed in the territorial sea).398

Ibid., Article 40 of both laws. I.e., the principle of legality: see footnote 346 above. 396 Article 11(2) of the Criminal Code, as amended by Federal Law # 46-Ф3 of 9 April 2007. See also Article 67(1) of the Constitution of the Russian Federation. See also the federal law of 1 April 1993 # 4730-I. On the State border of the Russian Federation. See also Kashepov (ed.) (2005), p. 50. 397 Article 15 of the Constitution. On international law in the Russian legal system generally see, e.g., Marochkin (2007). 398 See also Kruglikov (ed.) (2010), p. 34. 394 395

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Rules regulating transit of the Russian territorial sea are contained in the federal law On the Internal Maritime Waters, Territorial Sea and Contiguous Zone.399 In particular, passage must be continuous and expeditious.400 In line with the provisions of UNCLOS, innocent passage must not prejudice the peace, good order and security of the Russian Federation, and may be interrupted by an act of wilful and serious pollution that contravenes the rules of the Russian Federation and international standards.401 In an administrative case,402 the Murmansk City Court had an opportunity to interpret the definition of innocent passage. In particular, the court was concerned with the requirement for passage through the territorial sea to be continuous and expeditious. The case concerned a fishing vessel that was passing through the territorial sea after leaving the waters off the Kola Peninsula. While in the territorial sea, the vessel began to manoeuvre and change direction. The master said that the vessel had not stopped, although it had been drifting because the engine had stalled. The court sentenced the master to an administrative fine for infringing the rules governing passage in the territorial sea and the State border of the Russian Federation. The master objected to the fine, arguing that the drifting had been caused by engine damage. He pointed out that the vessel had not, in any event, stopped and anchored in the territorial sea. The judge was unable to conclude on the basis of the available evidence that the irregularities in the ship’s movements while sailing through the territorial sea had been caused by force majeure.403 He pointed out that international rules on collision prevention define a moving vessel (a vessel “underway”) as a vessel that is not at anchor, made fast to the shore, or aground.404 At the same time, no definition of “stopping” could be found in any international agreement. The judge decided that “stopping” also included the intentional interruption of a vessel’s movement for a period of time, including manoeuvring by shifting and reversing directions, assuming that the stop

Articles 1(1) and 2(4). See also USSR-US: Joint Statement with attached uniform interpretation of rules of international law governining innocent passage, done at Jackson Hole, Wyoming, September 23, 1989, 28 I.L.M. 1444 (1989). 400 Article 10 of the federal law On the Internal Maritime Waters, Territorial Sea and Contiguous Zone, cited in footnote 393 above. 401 Ibid., Article 11. Cf. Article 19 UNCLOS. 402 Case # 12–131/11 Ampleev v. Border guard (State sea inspection), Murmansk City Court Oktiabr district (date unknown). The case is on file with the author. 403 The master also made no attempt to summon help. 404 Regulation 3 of The International Regulations for Preventing Collisions at Sea 1972 (COLREG). 399

302   Part Four was not caused by an engine stop or because the vessel’s movements were constrained within the meaning of the international rules on collision. As discussed earlier in this work, international law grants States full sovereignty over foreign ships within their internal waters and ports. This sovereignty is not restricted by the freedom of navigation and the corresponding right of innocent passage. Russia also asserts full jurisdiction over foreign vessels that commit discharge violations in its internal waters and ports,405 even though usually it will exercise jurisdiction over a crime committed on board a foreign ship while in port only where the consequences of the crime produce effects on shore.406 The term “internal waters” refers to “waters on the landward side of the baseline of the territorial sea”.407 Generally, a coastal State will have authority to interdict and prosecute foreign perpetrators of pollution in its internal waters. In addition, foreign vessels do not enjoy a right of innocent passage through internal waters, except in cases where a right of innocent passage existed previously in waters that have subsequently been enclosed by the application of the straight-baseline method of maritime delimitation.408 While Russia has ports in the Baltic and the Black Seas, most of its coastline is in the Arctic region and the Far East. With regard to Russian jurisdiction over Arctic coastal waters, some sea territories are claimed by Russia as having the status of historic waters (i.e., historic bays, historic seas, and historic straits). Such status would have the effect of including these territories within Russia’s internal waters. These territories include the Bay of Peter the Great (objected to by the UK), the Kara, Laptev, East Siberian, Chuckchi and Okhotsk Seas (all claimed by Russia as “historic seas”) and the straits between the Arctic seas. The issue of historic waters is controversial and falls outside the scope of this work. The current Russian position on the Arctic seas is the subject of debate by Russian legal commentators, some of whom argue that these should be considered internal seas.409 Not all commentators share this approach, however, particularly with regard to the Kara, Laptev and East

Inspections of vessels in ports are conducted according to the provisions of the Merchant Shipping Code and other rules applicable to vessel calls at ports. Such inspections include controls of compliance with the provisions of international and, as the case may be, domestic law. Article 76 of the Merchant Shipping Code. See also Articles 34–36 of the law On the Internal Maritime Waters, the Territorial Sea and the Contiguous Zone, providing for the ecological control of these maritime zones. 406 See, e.g., Ivanov (2002), p. 209. 407 Article 8(1) UNCLOS. 408 Article 8(2) UNCLOS. 409 See, e.g., Sokirkin and Shitarev (2006), p. 141. 405

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Siberian Seas.410 Foreign commentators have also pointed out that Russian practice is rather fragmented and objected to by some other States.411 As already clarified, Russian criminal jurisdiction generally covers discharge violations by foreign ships committed within its territorial sea or internal waters. Where a discharge violation is suspected, the Russian authorities have the power to investigate and, if appropriate, arrest persons on board.412 Russian law also provides for measures to be taken against foreign vessels within the territorial sea in relation to discharge violations committed outside the territorial sea.413 The dumping of waste and the discharge of harmful substances within the internal waters and the territorial sea is prohibited.414 A discharge of harmful substances is defined broadly as “any discharge from ships and other floating devices (hereinafter referred to as “vessels”) . . . irrespective of the causes for the discharge, including any leakage, removal, spills, pumping, release or emptying.”415 This definition covers pollution incidents irrespective of their cause. Thus both operational and accidental pollution are prohibited. Furthermore, where a maritime casualty (e.g., a collision or grounding) in the internal waters or territorial sea causes “serious harmful consequences”, measures proportionate to the threatened or actual pollution may be taken with respect to the damaged vessel and those responsible for the casualty.416 The law On the Internal Maritime Waters, Territorial Sea and Contiguous Zone defines a harmful substance as a “substance that, when entering the marine environment, is capable of endangering human health or damaging living resources, marine flora and fauna, worsening conditions for recreation or impeding other ways of legitimately using the sea, as well as substances subject to control under the international treaties of the Russian Federation”.417

See Kovalev (2003), p. 9. For a more detailed discussion of Russian practice see Brubaker (2001); Butler (1971); Kovalev (2003), p. 9. 412 Ivanov (2002), p. 219. The competent Russian authorities are the federal security institutions acting in co-operation with defence officials and state environmental entities (Article 39 of the Law on the Internal Waters, the Territorial Sea and the Contiguous Zone). 413 Article 17 of the Law on the Internal Waters, the Territorial Sea and the Contiguous Zone. 414 Ibid., Article 37(2). Cf. Article 30 of the Law on the Exclusive Economic Zone. 415 Ibid., Article 37(1). 416 Article 38 of the Law on the Internal Maritime Waters, Territorial Sea and Contiguous Zone is based on the 1969 Intervention Convention. 417 Article 37(1). 410 411

304   Part Four Russia is also a party to MARPOL, which sets forth rules and discharge standards for various harmful substances from ships.418 The law On the Internal Maritime Waters, Territorial Sea and Contiguous Zone does not contain any specific standards concerning permitted discharges or any norms concerning the quality of the marine environment within the internal waters and the territorial sea. The law delegates the function to adopt such norms to the federal government.419 The references to the international treaties of the Russian Federation in the Criminal Code and in the federal laws regulating jurisdiction over pollution violations in Russian coastal waters imply that the definition of prohibited discharges, as well as discharge standards, should be understood in the light of MARPOL. Notably, the Russian provision only partly follows the exceptions set forth in MARPOL, as it expressly exempts from the general prohibition on pollution within the internal waters and the territorial sea: 1) any discharges of harmful substances that occur as a direct result of exploration, development and related processes involving natural mineral resources; and 2) discharges of harmful substances for the purposes of scientific marine research with the aim of combating or controlling pollution.420 In contrast, the law regulating activities in the territorial sea does not contain a corresponding provision to the MARPOL exception for accidental pollution. The Criminal Code also does not expressly incorporate the MARPOL exception in the scheme of the criminal liability under the Code. The questions likely to arise in cases when national provisions deviate from the rules set forth in an international treaty such as MARPOL were illustrated in Intertanko, discussed earlier in this Part. As noted earlier, Russia is bound by the international treaties to which it is party. Such treaties, international customary law and general principles of international law will, generally, supersede conflicting national provisions. It is not, however, unlawful for a State to apply stricter discharge standards than those applicable internationally to ships transiting its territorial sea. Indeed, UNCLOS generally authorizes coastal States to do so. However, the Amurskoe Parohodstvo case, examined later in this section, shows that

Apart from Annexes I and II (mandatory), Russia has also acceded to Annexes III, IV and V and, recently, to Protocol of 1997 (Annex VI) of MARPOL (air pollution): see status of ratifications at http://www.imo.org (as per 31 January 2012). For more on Russia’s implementation of MARPOL generally, see Zharkova (2001). 419 The regulation currently in force is Governmental decree # 208 of 10 March 2000. 420 Article 37(1) of the Law on the Internal Maritime Waters, Territorial Sea and Contiguous Zone. 418

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the Russian courts may apply MARPOL in such a way as to rule out the application of a conflicting domestic provision. The Federal Law on the Exclusive Economic Zone of the Russian Federation provides that norms for discharges of harmful substances that apply in the internal waters and territorial sea of Russia apply also within the Russian EEZ, taking into account international standards and the international treaties to which the Russian Federation is party.421 Accordingly, discharge standards applicable in the EEZ will generally correspond to international (i.e., MARPOL) standards. One exception is the special regulatory regime applying to shipping activities in the Northern Sea Route, which is viewed by Russia as a “historically developed national uniform transport communication” route of the Russian Federation in the Arctic, and not as an international seaway.422 Special rules apply to vessels transiting the Route, which is defined in more detailed as the national transportation route of the [Russian Federation], which is situated within the inland waters, territorial sea (territorial waters), or exclusive economic zone adjoining the [Russian] northern coast, and includes seaways suitable for guiding ships in ice the extreme points of which in the west аre the western entrances tо the Novaya Zemlya straits and the meridian running from Mys Zhelaniya northward and in the east, in the Bering Strait, bу the parallel 66°N and the meridian 168°58'37"W.423

The rules confirm that the waters of the Route are specially regulated by the coastal State. As a starting point, foreign ships sailing in the Route are subject to control and inspection by the competent Russian authorities and must inter alia notify any pollution that either occurs or is detected.424 The provisions of the Criminal Code that apply to marine pollution generally also apply to violations in the Route. With respect to the parts of the Route that cross its territorial sea or EEZ, Russia has to comply with the general regime envisaged in UNCLOS, i.e.,

See Article 30 thereof. The regulations currently in force are Governmental decrees # 748 of 3 October 2000 and # 251 of 24 March 2000. 422 Article 14 of the Law on the Internal Maritime Waters, the Territorial Seas and the Contiguous Zones. On the Northern Sea Route generally see also Butler (2006), pp. 377–379, Franckx (2010–2011), p. 419 et seq. and Skaridov (2010). 423 Para. 1.2 of the 1990 Rules. Available in English and Russian at http://www.mintrans.ru. 424 Paras 6 and 12 of the 1990 Rules. In practice, there are few foreign vessels transiting these waters, although their number has increased slightly. In addition, special climate and ice conditions make it necessary for such vessels to comply with special safety requirements. Foreign vessels sailing through these waters are always accompanied by a Russian icebreaker. 421

306   Part Four it is not entitled to impose stricter CDEM standards in the territorial sea and stricter discharge standards in the EEZ than those accepted internationally. By virtue of Article 234 UNCLOS, however, Russia may be entitled to claim more extensive jurisdiction with respect to ice-covered areas, including those lying beyond its internal waters and territorial sea, but within its EEZ (at least as long as they remain ice-covered), and may inter alia deviate from international CDEM standards and, arguably, from the limitation on the types of penalties envisaged in Article 230 UNCLOS.425 At the same time, it is possible that the Russian courts will not pay attention to the nuances of international rules of jurisdiction, and will tend to rule out the application of domestic safety standards that exceed those adopted internationally. For example, in Amurskoe parohodstvo v. Ministry of Natural Resources,426 the State Arbitration Court addressed the applicability of the federal rules on permitted discharges in the EEZ in the light of MARPOL (more specifically, Regulation 16(1) of MARPOL on requirements for oil filtering equipment).427 The court upheld an administrative fine imposed on the shipping company for violating the domestic rules428 because one of its ships had discharged polluting substances into the EEZ. The company had also failed to equip the ship with oil filtering equipment in compliance with the domestic rules. Under MARPOL, however, the ship in question was not required to have such equipment installed. The shipping company successfully argued that the domestic rules did not apply because they contradicted the international rules. (The Maritime Inspectorate had argued that the rules had been adopted in the light of the complex ecological situation off the coastline of the Russian Federation, which justified the imposition of more stringent rules.)

On Article 234 UNCLOS see also Section 7.5 above. See also Franckx (2011) and Molenaar (2008–2009). 426 Case # Ф03-A73/04-2/3531 Amurskoe parohodstvo (“Professor Kerichev”) v Ministry of Natural Resources (Specialized sea inspection), judgment by the Cassation Instance of the Federal Arbitration Court (Far-East Region) of 22 December 2004. See also Case # Ф03A73/04–2/h3023 Amurskoe parohodstvo (“Sormovskij-117”) v Ministry of Natural Resources (Specialized sea inspection), in a court of the same instance, judgment of 24 November 2004. Both judgments are on file with the author. 427 This Regulation envisages inter alia that all ships of 400 gross tons and above shall be fitted with oil filtering equipment. 428 The domestic rule in question is the Decree of the Government of the Russian Federation of 3 October 2000 # 748 “On the adoption of levels of permitted concentrations and conditions of discharge of harmful substances in the exclusive economic zone of the Russian Federation” (in force). 425

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In its decision, the court emphasized that the norms of international law superseded conflicting domestic rules. Accordingly the court concluded that the shipping company had not committed the administrative violation for which it had been penalized by the Maritime Inspectorate. Such a conclusion is, in principle, compatible with Articles 211 and 220 UNCLOS, which precludes coastal States from adopting discharge and CDEM rules that deviate from international standards (MARPOL).429 The judgment makes no mention of the flag State of the ship in question, nor does it discuss expressly the differences between the scopes of the prescriptive jurisdictions of the flag State and the coastal State. From the perspective of UNCLOS, Russia as a flag State would be entitled to exceed international standards so that a Russian-flagged vessel would have had to comply with national provisions irrespective of whether they imposed more stringent requirements. As mentioned above, the geographical scope of the Criminal Code extends to crimes committed in the Russian EEZ.430 However, in line with UNCLOS, Russia does not assert jurisdiction over all crimes committed on board foreign vessels transiting its EEZ, only crimes that affect its interests.431 The Law on the Exclusive Economic Zone provides that natural and legal persons may be held liable inter alia for ship-source pollution pursuant to the laws of the Russian Federation.432 How does Russian law regulate the exercise of enforcement jurisdiction over foreign-flagged perpetrators of pollution? The Law on the Exclusive Economic Zone provides the Russian authorities with powers to inspect foreign vessels sailing through the EEZ. In particular, vessels suspected of committing discharge violations within the EEZ may be stopped and inspected. Article 36(1)(4) provides that the competent authorities are entitled to stop vessels if they have sufficient grounds to consider that these vessels have committed unlawful discharges of harmful substances in the exclusive economic zone [of the Russian Federation]. The shipmaster of the stopped vessel may be requested to submit the information necessary to determine whether

Russia would probably be sceptical about the application of any such standards deviating from the international rules to its own ships. In any case, Malta filed an objection with respect to the Russian-owned but Maltese-flagged Moskovskiy Festival when she was refused admission to the Portuguese EEZ because she was a single-hulled tanker (when single-hulled tankers were still allowed under MARPOL but not by EU States (reported by Kovalev (2004), p. 248)). 430 Article 11(2) of the Criminal Code. 431 See also Kashepov (ed.) (2005), p. 50. 432 Article 40(2) thereof. 429

308   Part Four a violation has taken place and the vessel may be inspected. The results of the inspection will be recorded [in a protocol?], leading to detention if there are sufficient grounds.

It is clear that this provision goes further than the corresponding article in UNCLOS (Article 220). Under UNCLOS, a coastal State’s authorities may only request information, except in cases of significant or major pollution. The Law on the Exclusive Economic Zone also envisages a right of hot pursuit. According to the law’s express wording, however, the right of hot pursuit only applies to vessels that have violated fisheries rules and to vessels conducting scientific and exploration activities. Discharge violations are not included within the scope of the provision.433 More detailed rules on the provision of security in relation to suspects in criminal proceedings, including detention (and similar measures) and monetary security, are contained in the Criminal Procedure Code. Detention or other measures, such as the provision of a bond, will generally be applied only if there are “sufficient grounds” to suspect that the person will flee the jurisdiction, interfere with evidence or otherwise obstruct the course of justice.434 The Code specifies the circumstances that must be taken into account when selecting the appropriate coercive measure. These include, in particular, the gravity of the offence and the personal circumstances (e.g., health) of the suspect.435 Generally, coercive measures may only be applied to foreign vessels in exceptional situations, where an assessment of the relevant circumstances indicates that such measures are appropriate.436 The Code specifies that pretrial detention may be imposed where a suspect is potentially liable to a sentence of more than two years’ imprisonment and no less severe measure is practicable.437 The Code does not explain what types of measures may be considered “less severe”, but apparently measures that are less restrictive on personal liberty (e.g., a declaration by the suspect that he will not leave the jurisdiction or the posting of financial security) should be preferred where possible.

Article 36(1)(4) of the Law on the Exclusive Economic Zone of the Russian Federation. Would the Russian authorities exercise the right of hot pursuit with respect to a perpetrator of pollution in the absence of a legal provision granting them such a right? The question remains open, as to the author’s knowledge no State commonly employs the right of hot pursuit in pollution cases. 434 Article 97(1) of the Criminal Procedure Code. 435 Ibid., Article 99. 436 Ibid., Article 100. 437 Ibid., Article 108. 433

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The Law on the Exclusive Economic Zone also provides for the prompt release of foreign vessels and crews detained for violations of this law subject to the posting of a reasonable bond or similar financial security.438 The Law does not explain, however, what constitutes a “reasonable” bond or other financial security. The Criminal Procedure Code states that the type and amount of financial security should be determined in the light of the character of the offence, the character of the suspect and the financial position of the person (or entity) posting the security.439 However, practice on the release of foreign vessels for violations of fishing rules in the Russian EEZ shows that other considerations will also be relevant, notably, the potential amount of any fines.440 In the Cristoforo Colombo (September 2004),441 a Belgian dredger stranded on rocks off the Sakhalin coast (near the port of Kholmsk) during a heavy storm. The resulting pollution involved more than 240 cubic metres of mud and oil-contaminated seaweed, as well as 200 tons of fuel oil. The decision of the master (a Belgian citizen) to disregard a storm warning was particularly criticized and the public prosecutor filed a case against the master for negligence. Initially the master was taken into custody. Subsequently, however, the court ruled that he should be released on USD 100 000 bail. Even so, the master was not allowed to leave the country, although he was allowed to return to his ship.442 (Generally, being “released” in Russia means being released from custody. It does not necessarily mean being allowed to leave Russian territory.)443 The Law on the Exclusive Economic Zone also provides that prison sentences may not be imposed for offences involving fishing violations in the

Article 39(1) of the Law on the Exclusive Economic Zone of the Russian Federation. An equivalent provision is not expressly included in the law on the territorial sea. 439 Article 106 of the Code. Article 106(3) also determines minimum thresholds for the amount of financial security. 440 The “Hoshinmaru” Case (Japan v Russian Federation) (Application for prompt release), Case No. 14, Judgment of 6 August 2007, para. 83. See also the “Volga” Case (Russian Federation v. Australia) (Application for prompt release), 42 I.L.M 159 (2003), Judgment of 23 December 2002), where Russia objected to the imposition by Australia of additional conditions for release as a part of the security required for the ship. 441 The case was reported on 24 September 2004 by Leonid Vinogradov (WESTLAW/World News Connection), and by Bambulyak/Frantzen (2004). 442 The master was certainly not allowed to leave immediately, but no information about the subsequent proceedings in this case is available to the author. 443 This could be concluded on the basis of arguments brought by Russia as a respondent in prompt release cases before the ITLOS: see, e.g., Hoshinmaru, cited in footnote 440 above. 438

310   Part Four EEZ.444 The Law does not expressly address the question of criminal sanctions for discharge violations committed in the EEZ (in respect of which Article 230 UNCLOS precludes any sanctions other than monetary penalties). This provision has the practical effect, however, that the Russian courts will not impose prison sentences either for ship-source pollution violations in the EEZ or for negligent pollution violations in the territorial sea.445 However, there is no equivalent provision in the law regulating the territorial sea. Does Russian criminal law apply to discharge violations committed outside its EEZ (i.e., on the high seas and in other States’ territory)? To reiterate, Russian criminal jurisdiction extends to Russian-flagged vessels and persons who commit crimes on board these vessels, as well as to nationals and permanent residents of the Russian Federation who commit crimes caught by the Criminal Code. In general, the Criminal Code does not apply to crimes committed by foreigners outside Russian territory.446 Article 12(3) of the Criminal Code imposes criminal liability, however, on foreigners who commit crimes outside the territory of the Russian Federation if the crime is directed against the interests of the Russian Federation or against a national or a permanent resident of the Russian Federation. Logically, one may assume that this provision will not apply in all cases where Russian interests may have been affected. A specific example where the provision would not apply even if Russian interests were affected would be a casualty such as a collision on the high seas where a foreign ship caused damage to a Russian-flagged vessel, i.e., the type of situation covered by Article 97 UNCLOS.447 What are the interests protected by Article 12(3), and could pollution violations by foreign ships outside the Russian EEZ compromise these interests within the meaning of the Code, e.g., if the coastline were to be affected by pollution? The legal commentary notes that the objectives protected by the Criminal Code are not only the interests and ecological rights of the population, individual citizens and the State as a whole, but also protection of the environment generally. This is also confirmed by the express wording of Article 2(1) of the Code.448 At least in exceptional cases of major damage

Article 39(2) of the Law on the Exclusive Economic Zone of the Russian Federation. See Ivanov (2002), pp. 220, 224. 446 See, e.g., Kashepov (ed.) (2005), p. 55. 447 In any event, Russia objected to Canada’s initiation of proceedings against a Cypriotflagged tanker, the Virgo, which had a Russian crew on board when it allegedly collided with and sank a US fishing vessel, killing several fishermen on the high seas off the US coast. On Virgo see Section 6.2 above. 448 See also Kudel’kin (2011), p. 23. 444 445

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to the environment, this provision could arguably be applied to justify the exercise of criminal jurisdiction over foreign-flagged perpetrators, even if the pollution occurred on the high seas.449 Alternatively, the Code will also apply in cases envisaged by an international treaty if the foreigners in question: 1) have not been tried in another State (the ne bis in idem principle); and 2) are prosecuted within the territory of the Russian Federation.450 In principle, this provision authorizes Russia, in its capacity as a port State under Article 218 UNCLOS, to take measures in respect of discharge violations where the perpetrator has called at a Russian port. In general, the Russian port authorities conduct inspections of foreign vessels in port, including inspecting compliance with safety requirements, and are authorized to detain non-compliant ships (including ships suspected of discharge violations).451 At the same time, the prosecution of a foreignflagged perpetrator will apparently require a careful evaluation of the authority of the port State to institute such proceedings. The practice of the Russian prosecution authorities and courts with respect to extraterritorial cases of ship-source pollution does not support—but also does not rule out—such an interpretation of the Code.452 Russian legal commentary is rather scarce on this topic and at least some scholars are sceptical as to the broad application of Article 218 UNCLOS. Kovalev, in particular, points out that [UNCLOS provisions] granting excessively extensive powers to the port State and coastal States in the event of a violation committed beyond the limits of the internal waters, territorial seas, and economic zones of these States, that is, in essence, on the high seas, in practice may lead to infringements on the sovereign rights of the flag State and to a violation of the interests of international navigation.453

At the same time, the provisions of UNCLOS have generally been accepted by the Russian Federation. Accordingly, the exercise of a wide-ranging (extraterritorial) jurisdiction to criminalize pollution violations by foreign ships on the high seas and in the coastal waters of other States cannot be entirely ruled out.

See also Kashepov (ed.) (2005) who does not, in principle, preclude the application of the Code in cases of environmental pollution. 450 Article 12(3) UNCLOS. 451 See Ivanov (2002), p. 153 et seq. 452 The author is not aware of the existence of such practice. However, European States’ practice is equally scarce on this point. 453 Kovalev (2004), p. 251. 449

Part Five Summary and Conclusions As well as summarizing the findings of the earlier parts, this final part presents the author’s conclusions on the central issues discussed in this work. It also highlights particularly problematic and ambiguous areas in the jurisdictional regime established under the law of the sea. These areas, in the author’s view, require clarification at both national and international levels. The principal topic addressed in this work concerns the limits imposed by international law on States’ jurisdiction to enact and enforce criminal sanctions for ship-source pollution. The discussion also addresses issues pertaining to the allocation of jurisdiction between States with concurrent claims to try a perpetrator. Part Two of this monograph examines the scope of prescriptive criminal jurisdiction with regard to ship-source pollution. The international-law rules of jurisdiction applicable to ship-source pollution violations are codified in the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS Part XII “Protection of the marine environment” sets forth rules that determine the prescriptive and enforcement jurisdiction of flag, port and coastal States over perpetrators of ship-source pollution. Flag States play a central role in the jurisdictional regime established under the law of the sea and are obliged to ensure that their vessels comply, at a minimum, with generally accepted international standards for the prevention, reduction and control of marine pollution. UNCLOS and the International Convention for the Prevention of Pollution from Ships of 1973, as amended by the Protocol of 1978 (MARPOL 73/78), require flag States to adopt “adequately severe” penalties for shipsource pollution. However, this work has established that neither UNCLOS nor MARPOL, nor any other international agreement currently in force, nor international law generally, requires States to adopt criminal sanctions for environmental offences, including ship-source pollution. Thus it is up to States to decide what sanctions are “adequately severe”, meaning that States

314   Part Five may, for example, choose to apply administrative-law measures to punish pollution violations. At the same time, both flag and non-flag States may enact criminal sanctions for ship-source pollution, assuming they consider such sanctions necessary. In practice, many States have imposed criminal liability for serious pollution violations, including discharges from ships. Whereas the flag State’s right to criminalize pollution violations committed by its ships is uncontroversial from an international-law perspective, coastal and port States are more likely to encroach upon the flag State’s sovereignty if their legislative measures exceed what is permitted under international law. Thus a significant part of the discussion in Part Two concerns the scope of States’ jurisdiction under international law to prescribe criminal sanctions for foreign-flagged vessels. Two types of limitations may apply under either international treaties (UNCLOS or MARPOL) or international law generally to the prescriptive jurisdiction of coastal and port States: 1) limitations on the substantive content of national criminal law (e.g., standards to be applied for determining whether a discharge is unlawful, standards of fault, types of penalties, etc.); and 2) limitations on the geographical reach of a State’s criminal law. With respect to the geographical reach of national criminal law, it is clear that States are free to enact criminal sanctions for pollution and related offences committed by foreign vessels within their internal waters, ports and the territorial seas. UNCLOS envisages however a limitation on the jurisdiction of coastal States with regard to foreign vessels exercising the right to innocent passage through their territorial seas, i.e., outside the baselines but within the 12-nautical-mile limit. Thus coastal States are not permitted to adopt and enforce rules that will hinder the innocent passage of foreign ships. The UNCLOS provisions on innocent passage do not mention expressly the right of a coastal State to enact penalties for discharge violations committed by foreign ships in its territorial sea. At the same time, however, Article 220 UNCLOS authorizes coastal States to institute proceedings to penalize such violations. Having examined the relevant provisions of UNCLOS, State practice and legal commentaries, the author has concluded that coastal States are, in principle, permitted to enact sanctions (including criminal sanctions, if such sanctions are considered appropriate) for violations of national and international discharge standards in their territorial seas. With regard to pollution violations committed outside the territorial sea of a coastal State, UNCLOS generally permits coastal States to enact penalties for violations of international discharge standards committed by foreign vessels within their exclusive economic zones (EEZ). UNCLOS does not expressly either authorize or prohibit, however, the enactment of criminal

Summary and Conclusions   315

sanctions by non-flag States for pollution violations committed outside these States’ EEZs (i.e., on the high seas and in other States’ maritime zones). There are several reasons, however, why States may wish their criminal laws to have such reach. First, a State may be affected by a pollution incident even though the incident occurred outside the limits of its EEZ (assuming it has established one) or territorial sea. Second, a State may anticipate being requested to institute proceedings either by the flag State of a delinquent ship or by a coastal State whose maritime zone has been affected by a pollution violation (Article 218 UNCLOS). Third, a State may condemn all environmental crimes in principle, irrespective of where they are committed and whether they affect the interests of any specific State. Whichever one of these reasons applies, the State will need an appropriate legal basis for criminal enforcement in its national law (the principle of legality). However, in contrast to flag States, which are entitled (and even obliged) by UNCLOS to adopt sanctions for discharge violations committed by their vessels irrespective of where they sail, non-flag States arguably enjoy less freedom to exercise extraterritorial criminal jurisdiction over foreign vessels. In the Lotus, the Permanent Court of International Justice suggested that, in the absence of a prohibitive rule of international law, States were free to legislate with regard to conduct committed outside their territorial limits. However, many legal scholars argue to the contrary, asserting that States should exercise extraterritorial jurisdiction with moderation and, where doing so, should justify legislative measures based on either the need to protect certain interests or the existence of other links between the legislating State and the conduct or the offender. In order to implement Article 218 UNCLOS (port State enforcement jurisdiction), however, the geographical reach of national criminal laws should extend to the high seas and other States’ waters. We will return to the matter of criminal enforcement jurisdiction and Article 218 below. At this point, we will merely note that Article 218 does not make the exercise of enforcement jurisdiction with regard to discharge violations committed outside the port State’s maritime zones conditional on the existence of either 1) any effects on the port State, or 2) any links between the perpetrator and the port State (apart from the voluntary presence of the delinquent vessel in one of the port State’s ports). Logically, the inclusion of such a provision as Article 218 in Part XII UNCLOS can be construed as authorizing States to enact criminallaw provisions of extraterritorial reach in order to provide the legal basis needed in their national laws to comply with the principle of legality. This study also addressed the question of the compatibility of the substantive scope of national criminal liability rules with the relevant international treaties. The central instrument in this respect is MARPOL 73/78, which

316   Part Five prohibits discharges of harmful substances from ships. These substances, which include oil, are specified in six Annexes. The convention also contains rules on pollution-prevention equipment to be kept on board, establishes discharge standards, and provides for related safety obligations. Although MARPOL establishes a general ban on ship-source pollution, it does exempt some polluting discharges in particular circumstances. Thus the ban does not apply to discharges of oil and liquid noxious substances (Annexes I and II) that result from damage to a ship or its equipment, subject to two important provisos: 1) all reasonable precautions must have been taken after the occurrence of the damage or discovery of the discharge for the purposes of preventing or minimizing pollution; and 2) the owner or the master must not have acted intentionally or recklessly and with knowledge that damage would probably result. The above-mentioned exemption focuses strongly on fault as a factor for assessing whether the conduct was excusable or not. Furthermore, the exemption mentions specific persons, i.e., the master and the owner, who may (or may not) be responsible for the discharge in the light of the conditions laid down therein. Must States comply verbatim with the wording of MARPOL to ensure that their national criminal law provisions are in conformity with international law? As examined earlier in this work, the EU directives that require the adoption of criminal sanctions for ship-source pollution contain definitions of criminally punishable violations. The wording of these provisions differs very considerably from that of MARPOL. Notably, the directives ignore the above-mentioned MARPOL exemption with regard to pollution accidents in the territorial sea, and only partly maintain it with regard to pollution accidents in the EEZ and on the high seas. According to the EU directives, in the EEZ and on the high seas only the master, the crew acting under the master’s responsibility and the owner—but not other persons responsible for the safety of the ship—will be exempted from liability. The dispute in Intertanko (Court of Justice of the European Union, 2008) raised serious doubts as to the compatibility of the directives—as well as the corresponding implementation measures to be adopted by the Member States—with both MARPOL and UNCLOS. However, no clarification on this question has been provided by the EU Court of Justice. However, it may not be necessary for States to enact a literal transposition of the MARPOL exemption in order to comply with the convention. In fact, a verbatim construction of the MARPOL exemption could even lead to illogical results, allowing persons (not mentioned expressly in MARPOL) to escape liability even for intentional conduct resulting in pollution. In this author’s opinion, it is still advisable for States to adopt a definition of

Summary and Conclusions   317

ship-source pollution offences that in general conforms to the international rules, as this is the best way of ensuring legal certainty for shipping industry actors. Thus national legislators and courts should use the MARPOL exemption to provide general guidance on the formulation and application of national provisions on sanctions for ship-source pollution. Study of the laws and practices of individual States, such as Norway and Russia, shows that criminal-law provisions implementing MARPOL may in fact be formulated and interpreted quite differently and do not, in any case, implement the MARPOL provisions literally. However, criminal cases involving accidental pollution near the coastline of a prosecuting State, e.g., the Full City (Norway), show that national courts tend to take into account the master’s conduct during and after an accident (to prevent or mitigate pollution damage) when assessing fault (as MARPOL, in principle, recommends). Part Three of this work examines the scope of States’ enforcement jurisdiction under international law over the perpetrators of ship-source pollution. Enforcement jurisdiction includes the rights of a State to interdict a delinquent ship, to investigate the incident and, if necessary, to institute proceedings to impose penalties and adjudicate the criminal case. As pointed out above, a legal basis in the national criminal law is necessary for the authorities to be able to undertake enforcement measures vis-à-vis a delinquent ship and her crew. However, the geographical reach of national criminal laws may be considerably wider than the scope of the State’s enforcement powers. UNCLOS sets forth rather specific provisions on flag, port and coastal State enforcement jurisdiction over the perpetrators of ship-source pollution. In particular, these provisions address the taking of coercive measures by coastal States against foreign ships (e.g., the inspection and detention of ships in transit). In this respect, a coastal State’s enforcement jurisdiction is more limited than its jurisdiction to prosecute and punish foreignflagged vessels for pollution violations that damage its coastline and marine environment. Flag States have unlimited jurisdiction to enforce their laws vis-à-vis their own vessels. This jurisdiction includes the power to stop, inspect and detain their vessels outside other States’ territorial waters and on the high seas. In contrast, non-flag States have no authority to interfere with foreign perpetrators of pollution on the high seas (except where a coastal State exercises the right of hot pursuit). In contrast to the position with coastal and port States, whose enforcement jurisdiction under international law is voluntary, a flag State is obliged by UNCLOS to exercise enforcement jurisdiction vis-à-vis any of its ships involved in a pollution violation. Thus, flag States are required to investigate pollution violations committed by their ships irrespective of where the

318   Part Five violations occur. If the evidence suggests that it would be appropriate to institute proceedings and impose adequately severe penalties (“adequate in severity to discourage violations wherever they occur”), flag States must generally take such steps. However, it is up to the flag State’s authorities to assess the available evidence, including the evidence submitted by the port or coastal State, and to determine whether this evidence is reliable and warrants the taking of further action. Furthermore, a flag State may decide that non-criminal penalties are “adequately severe” in a particular case, even if the coastal State affected by the incident considers that criminal penalties would be more appropriate in the circumstances of the case. Unless a violation has caused major damage to the coastal State, Article 228 UNCLOS empowers the flag State to take over proceedings instituted by a port or coastal State with respect to a discharge violation committed outside the territorial sea. In this situation, the flag State must institute proceedings to impose penalties “in respect of corresponding charges”. Once the flag State’s proceedings have been “brought to a conclusion”, the suspended proceedings in the port or coastal State must be terminated (regardless of whether the port or coastal State is happy with the result. For example, the perpetrator may have been acquitted). However, the port or coastal State may refuse to suspend the original proceedings if the flag State has repeatedly disregarded its obligations to enforce effectively the applicable international rules and standards against its vessels. In the author’s view, it would be sufficient for the port or coastal State to refer to the general enforcement record of the flag State (e.g., by reference to the flag State’s presence on the Paris MoU’s “Black List”). In other words, there would be no need to show that the flag State had repeatedly omitted to take the enforcement action over discharge violations affecting the particular coastal State. With regard to the coastal State’s enforcement jurisdiction vis-à-vis foreign vessels navigating and polluting in its territorial sea, Article 220 UNCLOS permits the coastal State to stop, inspect and, if necessary, detain such vessels, so long as there are “clear grounds” for believing that a violation has taken place. Thus, by comparison with the criteria for intervention in the EEZ described below, the coastal State’s threshold for intervention is considerably lower in its territorial sea. Where a foreign vessel is navigating in the territorial sea or EEZ after having committed a discharge violation in the EEZ, the coastal State’s authority to intervene depends generally on the seriousness of the pollution. An insignificant discharge will only empower the coastal State to request information from the suspected vessel regarding her identity and port of registry, her last and next port of call, and other relevant information required to

Summary and Conclusions   319

establish whether a violation has occurred. An inspection of a foreign vessel in transit will be permissible only in cases where the discharge allegedly committed by the vessel in the EEZ is substantial and the vessel is ignoring the coastal State’s request for information. Detention of a foreign vessel in transit through the EEZ is only permissible if the coastal State has clear objective evidence that the violation has resulted in pollution causing major damage to the coastline or related interests of the coastal State. It is up to an enforcing State to define what discharges are “substantial” and to set thresholds for “major damage”. In this author’s view, a coastal State may also intervene where a foreign vessel is involved in small but repeated discharges in its territorial sea and EEZ, provided that the coastal State can show that such discharges overall result in significant pollution. However, active enforcement measures may only be undertaken once the delinquent vessel has committed (another) discharge. UNCLOS does not authorize a coastal State to preclude ships from transiting its territorial sea or EEZ merely on account of the poor reputation of their flag States. On the high seas, coastal States are generally not entitled to interfere at all with the navigation of foreign vessels, even if a State has sufficient reasons to believe that an unlawful discharge has taken place either within or outside the waters under its jurisdiction. There are two exceptions: 1) where the coastal authorities are exercising the right of hot pursuit pursuant to the conditions set forth in UNCLOS; or 2) the coastal State needs to protect its coastline against a major pollution accident involving a ship on the high seas, as provided for in the 1969 Intervention Convention. Having examined the relevant provisions of UNCLOS, national practices and the opinions of legal commentators, the author has concluded that the coastal State’s jurisdiction under international law to prosecute and punish foreign perpetrators of pollution is not, in principle, conditional on the perpetrator being interdicted either 1) immediately after the discharge violation has taken place; or 2) before the perpetrator has left the port and waters under the jurisdiction of the enforcing State. There are two reasons for arriving at this conclusion. First, the proceedings can be based on evidence obtained in the absence of direct contact between the coastal authorities and the delinquent vessel, e.g., by aerial surveillance (assuming the national court will view such evidence as sufficient). The coastal State may be able to punish persons and entities related to the ship either because they are located on its territory, e.g., a shipping company with a registered office, or because one or more of them (e.g., crew members) subsequently re-enter its territory (such enforcement opportunities may, however, be limited by the ne bis in idem principle). UNCLOS does not expressly regulate situations where a prosecution takes place in the absence of the

320   Part Five vessel that actually caused the pollution. However, nothing in the treaty suggests that the participating States have surrendered their jurisdiction under international law to prosecute perpetrators in such circumstances. Second, if the delinquent ship does not return to the coastal State, as envisaged in Article 218 UNCLOS, the latter may request the port State of the ship’s next call to take measures. A port State has a dual role under Part XII UNCLOS. First, it “represents” a) the coastal State, with regard to pollution incidents within the latter’s maritime zones, and b) the flag State, with regard to discharge violations committed by the ships flying the latter’s flag, irrespective of where such violations occur. Second, a port State may investigate and institute proceedings with regard to pollution violations committed by foreign vessels on the high seas, provided that the vessel is voluntarily within its port. In such cases, Article 218 UNCLOS does not require the pollution to have caused damage either to a coastal State or to the port State itself, or for the flag State to have requested the port State to initiate an investigation. The main purpose of Article 218 is to target discharge violations on the high seas, especially intentional violations, in cases where the flag State does not take appropriate measures to punish the perpetrators. By not requiring the port State to show either some links with the violation or some harm to its own interests, Article 218 deviates from general State practice in international law with regard to extraterritorial criminal jurisdiction. This departure from the well-established approach may explain why States have generally been cautious about giving their domestic statutes unlimited geographic reach, even though this is suggested in Article 218. The two States examined in this work—Norway and Russia—are no exception in this respect. Both States apply criminal sanctions for pollution violations committed by their ships on the high seas. However, with respect to foreign vessels, the Norwegian Ship Safety Act only applies extraterritorially (i.e., outside the Norwegian EEZ) where the government has issued a special regulation to this end. The provision on extraterritorial jurisdiction over foreigners in the Russian Criminal Code envisages that the foreigners’ conduct must have affected the interests protected by the Code (these include environmental interests). In this author’s opinion, although the Criminal Code does not in principle preclude the possibility of application to pollution committed by foreign ships outside the Russian EEZ, it is too ambiguous on this point to be used effectively in practice. In any case, it is unclear to the author whether the interests mentioned in the Code would only relate to damage caused by the pollution within Russia or whether they would include environmental interests in a broader sense (such as protection of the marine environment generally).

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At this point it is worth noting that Article 218 UNCLOS does imply that pollution violations are by definition harmful to the environment in general, irrespective of whether any specific damage has been caused to any particular State. Thus all pollution violations run counter to the world community’s desire to protect the marine environment. In this respect, port State jurisdiction, which catches all discharge violations, resembles universal jurisdiction. This is because the latter authorizes States to prosecute certain crimes irrespective of where or by whom (i.e., foreigners or nationals) they were committed. Ship-source pollution is not de lege lata an international crime covered by universal jurisdiction, i.e., it cannot be prosecuted by any State. The delinquent ship must still call voluntarily at a port of the State to enable the latter to institute proceedings. Still, it is sufficient for the purposes of Article 218 that harm was caused to the marine environment generally. This is, in itself, sufficient grounds for the port State to intervene. The enforcement practice of port States with regard to pollution violations committed on the high seas is, however, too scarce to either confirm or rebut this opinion. The author has not found any examples in which Norway or Russia (or an EU State, for that matter), as port State, has instituted criminal proceedings for a pollution violation on the high seas (unless this can be explained by poor public availability of the relevant national practice). However, as pointed out by the Permanent Court of International Justice in the Lotus, the scarcity of national cases “would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom” [author’s italics]. States’ forbearance from prosecuting discharge violations on the high seas may also be explained, of course, by a belief that international law does not allow them to institute prosecutions for such discharge violations in the absence of specific links to or effects on some State’s interests. If this is the case, there is an obvious and significant discrepancy between the express wording and intent of Article 218 UNCLOS and States’ interpretation of it. Given the central role of this provision in the scheme of Part XII, it is vital that States harmonize their interpretation of this provision and clarify its scope and objectives to national legislators and law enforcers. The absence of national practice may also be explained by practical impediments to the prosecution of violations committed on the high seas. Such violations may well be difficult to discover, especially if they are deliberately concealed. In addition, jurisdiction under Article 218, like coastal State jurisdiction under Article 220, is optional and port States may wish to refrain from prosecutions for pragmatic reasons. For example, they may fear that active enforcement will place an excessive burden on their legal systems.

322   Part Five Another point worth noting is that States may “avoid” issues of extraterritorial jurisdiction altogether by relying on their territorial jurisdiction, even if the pollution took place outside their territorial waters. Thus the objective territorial principle can be applied to unlawful discharges and related violations committed outside a coastal State’s maritime zones if the damage was produced within the State’s territory (as might well be the case with a major accident involving an oil tanker). Another category of cases involves situations where a coastal or port State does not penalize the main violation committed outside its territory (i.e., a discharge on the high seas or in other States’ waters), but instead brings proceedings for related offences that have allegedly been committed in the prosecuting State’s territory (e.g., falsification of oil record books, failure to report the incident, giving false information to the port officers etc.). From the prosecuting State’s perspective, an apparent advantage of such an approach is that an analysis of the complex issues relating to the doctrine of extraterritorial jurisdiction may be avoided altogether. In addition, the UNCLOS safeguards do not apply to conduct committed within the baselines of the coastal State. Thus the prosecuting State will not be bound by Article 230 UNCLOS, which restricts the types of penalties that may be imposed for a pollution violation by a foreign vessel. According to Article 230, all pollution violations outside the territorial sea may only be penalized by monetary sanctions (fines). Discharge violations within the territorial sea may only give rise to non-monetary penalties if they are “wilful and serious”. Pollution violations in the internal waters, i.e., within the baselines, are not subject to the limitations of Article 230, meaning that non-intentional pollution may also be penalized by imprisonment. In this author’s view, reliance on the territorial principle of jurisdiction in cases where the principal offence was, in fact, committed outside the State’s territory and has not caused any direct damage within its territory, is problematic for two reasons. First, such an approach can be criticized for not contributing to the development of the extraterritorial doctrine of criminal jurisdiction (and the clarification of the scope of Article 218 in particular). Second, the application of more severe sanctions, such as imprisonment, where the main violation would only have given rise to a fine (because it occurred outside the territorial sea) is unfair to the master and the crew and deprives them of the protection under Article 230 that they would otherwise enjoy. In such a case, prosecutors should also (or alternatively) target other persons who have contributed to the pollution incident, e.g., the shipowner or operator, as these persons are responsible for the general safety culture on board. However, such persons would, in any case, usually be liable only to fines, irrespective of the location of the offence.

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The latter consideration is, in this author’s view, also relevant in cases where the pollution incident itself took place within the baselines, as is rather common with accidental pollution, such as pollution caused by a grounding. Although the location of the incident on one side or the other of the baseline may be a matter of chance, especially if the incident results from a casualty, it will have very significant legal implications for the persons involved, as imprisonment may be imposed instead of a fine even for non-intentional pollution within the baselines. Although this author has established that States are free under UNCLOS and international law generally to decide on the type of penalties to impose for pollution caused within their internal waters, it would still be advisable for national authorities to take account of the above considerations in ship-source pollution cases and to consider carefully the choice of penalties. Part Four of this monograph examines EU harmonization measures and the practices of selected States (Norway and Russia) with regard to jurisdiction over the perpetrators of ship-source pollution and criminal sanctions. Parts of the author’s conclusions on the EU directives and the Norwegian and Russian rules have already been presented above. UNCLOS is silent on a number of questions pertaining to the exercise of criminal jurisdiction over the perpetrators of ship-source pollution. For example, it does not set forth rules or principles for determining how jurisdiction to prosecute a perpetrator should be allocated in a case where two or more coastal States have competing jurisdictional claims. As examined in this work, States will rely on the general rules of international law to determine which State is best suited to prosecute and punish the perpetrators. This determination will take into account several factors, including the extent of the damage caused to one State compared to the others, the location of the incident, and convenience for the proceedings (e.g., accessibility of witnesses and evidence, etc.). In Europe, the decision of Eurojust in the case of the Prestige illustrates an approach to allocating jurisdiction in ship-source pollution cases. Furthermore, the jurisdictional regime established under Part XII UNCLOS is based exclusively on three categories of States, i.e., flag, port and coastal States, and does not assign any express role to other States that may be connected to the delinquent ship. For example, the seafarer State and the State where the shipping company is registered are, in principle, entitled under international law in general to exercise criminal jurisdiction over perpetrators. States may, in theory, avail themselves of such jurisdiction, but it is rare in practice. It would, in any case, be complicated for such States to pursue proceedings, because UNCLOS does not envisage rights for such States regarding the supply of information or the taking over of proceedings instituted by the coastal, port or flag States.

324   Part Five A lack of specificity in UNCLOS and MARPOL also means that States may exercise considerable discretion in defining pollution crimes, determining the range of liable persons and setting the types and levels of penalties for ship-source pollution. Still, as pointed out above with regard to the EU directives, non-flag States’ right to impose a more stringent standard of fault than that envisaged in the MARPOL exemption is a contentious issue. It remains to be seen how this issue will be resolved by national tribunals or, as the case may be, the EU Court of Justice. In any case, as has been established in this study, national criminal laws usually condemn intentional pollution as the most serious form of conduct. While States also punish negligent pollution, they usually do not apply criminal sanctions for minor pollution incidents. In spite of many similarities between the national laws examined in this work, there are also marked differences with regard to standards of fault, the range of liable persons, and the definitions of specific violations to be punished by criminal law measures. The types and levels of available penalties also vary considerably from State to State. For example, under Russian law, unlike in Norway, criminal penalties may only be imposed on natural persons, although shipping companies may still be made subject to administrative sanctions for certain safety infringements. In conclusion, it is clear that further harmonisation of national laws is necessary. Such harmonisation would help clarify the complex issues raised by the international rules on criminal jurisdiction over the perpetrators of ship-source pollution and, consequently, increase legal certainty for the shipping sector. A more uniform system of sanctions for discharge violations would also make it more difficult for offenders to escape harsher penalties for discharge violations by “shopping” between flag or port States. Existing regional measures, such as those adopted by EU, should be supplemented by international and even global measures aimed at harmonizing States’ rules and practices with regard to the exercise of criminal jurisdiction over perpetrators of ship-source pollution. For these purposes, further work is necessary on the codification of international rules of criminal jurisdiction over foreign perpetrators of pollution. Furthermore, any future harmonization measures will, in this author’s view, need to be preceded by significant efforts to collate and analyse national practices with respect to environmental crimes and jurisdiction over perpetrators of ship-source pollution.

List of Sources International Documents Treaties International Convention for the Unification of Certain Rules relating to penal jurisdiction in matters of collision or other incidents of navigation (Brussels, 10 May 1952), 53 Am.J.Int’l L. 536 (1959). Convention on the High Seas (Geneva, 29 April 1958), 450 U.N.T.S. 82. Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958), 516 U.N.T.S. 205. Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), 1155 U.N.T.S. 331. International Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties (29 November 1969), 970 U.N.T.S. 211. International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended by the 1992 Protocol. European Convention on the Transfer of Proceedings in Criminal Matters (Strasbourg, 15 May 1972), European Treaty Series No. 073. International Convention for the Prevention of Marine Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (17 February 1978), 1340 U.N.T.S. 61, 2057 U.N.T.S. 68. International Convention for the Safety of Life at Sea (SOLAS) (1 November 1974), 1184 U.N.T.S. 278. United Nations Convention on Conditions for Registration of Ships (Geneva, 7 February 1986), 26 I.L.M. 1229 (1987). United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982), 1833 U.N.T.S. 397. Convention on the Protection of Environment through Criminal Law (opened for signature 4 November 1998), European Treaty Series No. 172. United Nations Convention on Jurisdictional Immunities of States and Their Property (the General Assembly of the United Nations, 2 December 2004). Not yet in force. Resolution 59/38, annex, Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 49. The International Regulations for Preventing Collisions at Sea (London, 20 October 1972) (COLREG).

Regional and Bilateral Agreements European Convention on Mutual Assistance in Criminal Matters (Council of Europe, Strasbourg, 20 April 1959), European Treaty Series—No. 30. Agreement between Norway and Soviet Union on Shipping (1974), 1975 O.M.S. 642. European Convention on the Transfer of Proceedings in Criminal Matters (Council of Europe, Strasbourg, 15 May 1972), European Treaty series—No. 73. Paris Memorandum of Understanding on Port State Control (26 January 1982), 21 I.L.M. 1.

326   List of Sources USSR-US: Joint Statement with attached uniform interpretation of rules of international law governining innocent passage, done at Jackson Hole, Wyoming, September 23, 1989, 28 I.L.M. 1444 (1989). Agreement between the Government of the Kingdom of Norway and the Government of the Russian Federation on Co-operation in Combating Crime, signed May 16, 1998, 1999 O.M.S. 956 (entered into force Sept. 30, 1999). Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances (Bonn Agreement, 1983). http://www.bonnagreement.org. Agreement between the Government of the Kingdom of Norway and the Government of the Russian Federation on co-operation in combating crime (Moscow on 26 May 1998, entered into force on 30 September 1999), 1999 O.M.S. 956.

International Court of Justice The Case of the S.S. ‘Lotus’ (France v. Turkey), 1927 P.C.I.J. Reports (ser. A) No. 10, p. 4. Case concerning the Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belgium v. Spain), I.C.J. Reports 1970, p. 3. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Namibia Advisory Opinion), I.C.J. Reports 1970, p. 16. Aegean Sea Continental Shelf (Greece v. Turkey) I.C.J. Reports 1978, p. 3. Continental Shelf (Libya v Malta), I.C.J. Reports 1985, p. 13. Nicaragua, I.C.J. Reports 1986, p. 14. Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997.

International Tribunal on the Law of the Sea M/V Saiga (St. Vincent v. Guinea), 37 I.L.M. 360 (1998), Int’l. Trib. L. of the Sea 1997. M/V Saiga (No. 2) (St. Vincent v. Guinea), 120 I.L.R. 143, Int’l. Trib. L. of the Sea 1999. Camouco (Pan. v. Fr.), 125 I.L.R. 164, Int’l. Trib. L. of the Sea 2000. Monte Confurco (Seychelles v France), Int’l Trib. L. of the Sea 2000. Grand Prince case (Belize v. France), Int’l Trib. L. of the Sea 2001. Volga (Russ. Fed. v. Austl.), 42 I.L.M. 159 (2003), Int’l. Trib. L. of the Sea 2002. Juno Trader (St. Vincent v. Guinea-Bissau), 44 I.L.M. 498 (2005), Int’l. Trib. L. of the Sea 2004. Hoshinmaru (Japan v Russian Federation), Int’l. Trib. L. of the Sea 2007.

European Court of Human Rights Mangouras v Spain (the Prestige), Case no. 12050/04, Judgment of 8 January 2009. Medvedyev and Others v. France (Application No. 3394/03), Grand Chamber, Judgment of 29 March 2010.

IMO Resolutions Res. A.153(ES.IV), Penalties for Unlawful Discharge of Oil into the Sea (Nov. 26, 1968). Res. A.499(XII), Penalties for Violations of Convention Requirements relating to the Prevention of Marine Pollution from Ships (Nov. 19, 1981). Res. A.987(24), Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident (Dec. 1, 2005). IMO/ILO Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident (27 April 2006), Resolution LEG 3.(91).

European Union Treaties Treaty Establishing the European Community, Nov. 10, 1997, 1997 O.J. (C 340) 3.

List of Sources   327 Treaty on European Union, Feb. 7, 1992, 2002 O.J. (C 325) 1. Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306) 1.

Secondary Law Directive 2002/59 establishing a Community vessel traffic monitoring and information system, amended by Directive 2009/17/EC, 2009 O.J. (L 131) 101 (EC). Council Directive 2005/35, On Ship-source Pollution and the Introduction of Penalties for Infringements, 2005 O.J. (L 255) 11 (EC). Council Regulation 864/2007, On the Law Applicable to Non-contractual Obligations (Rome II), 2007 O.J. (L 199) 40 (EC). Council Directive 2008/99, On the Protection of the Environment through Criminal Law, 2008 O.J. (L 328) 28 (EC). Directive 2009/16 of the European Parliament and of the Council of 23 April 2009 on port State control, 2009 O.J. (L 131) 57 (EC). Council Directive 2009/123, Amending Directive 2005/35/EC on Ship-source Pollution and on the Introduction of Penalties for Infringements, 2009 O.J. (L 280) 52 (EC). Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control, 2009 O.J. (L 131) 57 (EC).

Court of Justice of the European Union Case 66/80, International Chemical Corporation v. Amministrazione delle Finanze dello Stato, ECR [1981] 1191. Joined Cases 89, 104, 114, 116, 117 and 125-129/85, Ahlström and Others v. Commission (Wood Pulp I), ECR [1988] 5193. Joined Cases 89, 104, 114, 116, 117 and 125-129/85, Wood Pulp I, Opinion of AG Darmon. ECR [1993] I—1307. Case C-48/98, Söhl & Söhlke, ECR [1999] I-7877. Case C-13/00, Commission v Ireland, ECR [2002] I-2943. Case C-176/03, Commission v. Council, ECR [2005] I-07879. Case C-459/03, Commission v Ireland (MOX Plant), ECR [2006] I-4635. Case C-440/05, Commission v. Council, ECR [2007] I-09097. Case C-308/06, The Queen v. Secretary of State for Transport (Intertanko), ECR [2008] I-04057. Case C-308/06 (Intertanko), Opinion of the Advocate General (AG) Kokott. ECR [2008] I-4057.

Other Commission. “A Common Policy on Safe Seas”. COM (1993) 66 final (Feb. 24, 1993). Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof, OJ [1998] L 179/1. Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ [2000] C 197/01. Commission. “Proposal for a Directive of the European Parliament and of the Council on Ship-source Pollution and on the Introduction of Sanctions, Including Criminal Sanctions, for Pollution Offences”. COM (2003) 92 final (Mar. 5, 2003). European Parliament, Committee on Fisheries. “Report on Fisheries: Safety and Causes of Accidents”. A5-0087/2001 final (Mar. 12, 2001) (prepared by Rosa Miguélez Ramos). Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, OJ [2005] L 255/164. EEA Joint Committee Decision 65/2009, Amending Annex XIII (Transport) to the EEA Agreement, 2009 O.J. (L 232) 21.

328   List of Sources Council Decision 2009/948/JHA, On Prevention and Settlement of Conflicts of Exercise of Jurisdiction in Criminal Proceedings, 2009 O.J. (L 328) 42. European Maritime Safety Agency (EMSA). “Study on the Implementation of Ship-Source Pollution Directive 2005/35 in the EU Member States” (2010, not published).

Kingdom of Norway Laws Penal Code of 22 May 1902 no. 10 (Almindelig borgerlig Straffelov (straffeloven) av 22. mai 1902 nr 10). Seaworthiness Act of 9 June 1903 no. 7 (Lov om Statskontrol med Skibes Sjødygtighed m.v. (sjødyktighetsloven) av 9. juni 1903 nr 7). Act concerning Courts of 13 August 1915 no. 5 (Lov om domstolene (Domstolloven) av 13. august 1915 nr 5). Act concerning Svalbard of 17 July 1925 no. 11 (Lov om Svalbard (Svalbardloven) av 17. juli 1925 nr 11). Act concerning Jan Mayen of 27 February 1930 no. 2 (Lov om Jan Mayen av 27. februar 1930 nr 2). Act relating to Bouvet Island, Peter I’s Island and Queen Maud Land of 27 February 1930 no. 3 (Lov om Bouvet-øya, Peter I’s øy og Dronning Maud Land m.m. (bilandsloven) av 27. februar 1930 nr 3). Act relating to the Economic Zone of Norway of 17 December 1976 no. 91 (Lov om Norges økonomiske sone av 17. desember 1976 nr 91). Act concerning Protection against Pollution and concerning Waste (Pollution Control Act) of 13 March 1981 no. 6 (Lov om vern mot forurensninger og om avfall (forurensningsloven) av 13. mars 1981 nr 6). Criminal Procedure Code of 22 May 1981 no. 25 (Lov om rettergangsmåten i straffesaker (straffeprosessloven) av 22. mai 1981 nr 25). Maritime Code of 24 June 1994 no. 39 (Lov om sjøfarten (sjøloven) av 24. juni 1994 nr 39). Territorial Waters and Contiguous Zone Act of 27 July 2003 no. 57 (Lov om Norges territorialfarvann og tilstøtende sone av 27. juni 2003 no. 57). Penal Code of 20 May 2005 no. 28 (Lov om straff (straffeloven) av 20. mai 2005 nr 28). Ship Safety Act of 16 February 2007 no. 9 (Lov om skipssikkerhet (skipssikkerhetsloven) av 16. februar 2007 nr 9).

Regulations Regulation on the Prevention of Pollution from Ships (MARPOL-regulation) of 16 June 1983 no. 1122 (Forskrift om hindring av forurensning fra skip (MARPOL-forskriften) av 16. juni 1983 nr 1122). Regulation on Intervention on the High Seas and in the Economic Zone of Norway in Cases of Pollution or Risk of Pollution by Oil or other Substances resulting from a Maritime Casualty of 19 September 1997 no. 1061 (Forskrift om inngrep på åpent hav og i Norges økonomiske sone i tilfelle av havforurensning eller fare for forurensning av olje eller andre stoffer som følge av en sjøulykke av 19 september 1997 nr 1061). Regulation concerning Inspection, Detention and Boarding of Foreign Ships on Suspicion of Environmental Infringement (Forskrift om undersøkelse, stansing og bording av utenlandsk skip ved mistanke om miljøovertredelse av 2. july 2007 nr 850). Regulation on Notification and Reporting in Case of Maritime Casualties and Other Incidents at Sea of 27 June 2008 no. 744 (Forskrift om melde- og rapporteringsplikt ved sjøulykker og andre hendelser til sjøs av 27. juni 2008 nr 744). Regulation concerning Environmental Declaration in connection with Environmental Differenciation for Ships and Mobile Offshore Units of 28 November 2000 no. 1194 (Forskrift om miljødeklarasjon i forbindelse med miljødifferensiering for skip og flyttbare innretninger av 28. november 2000 nr 1194).

List of Sources   329 Regulation concerning Control of Foreign Ships and Mobile Offshore Units in Norwegian Ports of 30 December 2010 no. 1849 (Forskrift om kontroll med fremmede skip og flyttbare innretninger i norsk havn mv. (havnestatskontrollforskriften) av 30. desember 2010 nr 1849).

Cases Rt. [NSC] 1970.1235 Statsadvokat (The Public Prosecutor) mot A. Rt. [NSC] 1992.1578 Påtalemyndigheten (Public Prosecutor) mot A (M/S Arisan). Rt. [NSC] 1993.605 M/S Seacat. Rt. [NSC] 1999.999 Urszula Miegon mot Lamda Sea Shipping Co. Ltd. RG. [NCA] 2000.411 A mot Den offentlige påtalemyndighet (the Public Prosecutor). Rt. [NSC] 2002.1368 Den offentlige påtalemyndighet (the Public Prosecutor) mot A. ND [NCA] 2003.384 Sleipner. Rt. [NSC] 2004.819 A mot Den Offentlige påtalemyndighet (the Public Prosecutor) (the Bow Eagle). Rt. [NSC] 2007.1684 Den offentlige påtalemyndighet (The Public Prosecutor) mot Teknotherm AS. Rt. [NSC] 2009.1383 M/V Full City (decision concerning detention). Rt. [NSC] 2010.1608 Oceanwide Expeditions B.V. mot Den offentlige påtalemyndighet (the Public Prosecutor) (Aleksey Maryshev). RG. [NCA] 2011.680 Den offentlige påtalemyndighet (The Public Prosecutor) mot A og Q (M/V Full City). Rt. [NSC] 2011.1738 Polardrift AS mot den Offentlige Påtalemyndighet (the Public Prosecutor).

Travaux Préparatoires Ministry of Justice. “A law concerning amendments to the Penal Code in relation to international law—implementation of requirements under UNCLOS into Norwegian criminal legislation”. Proposal to the Storting (Ot.prp.nr 42 (1995–1996) Om lov om endringer i straffeloven (forholdet til folkeretten—gjennomføring av havrettskonvensjonens krav til straffelovgivningen). Ministry of Justice. “Adoption of the Penal Code”. Proposal to the Storting (Ot.prp.nr 90 (2003–2004) Om lov om straff (straffeloven)). Ship Safety Committee. “On the new ship safety legislation”. Report of 30 June 2005 from the Ship Safety Committee to the Ministry of Trade and Industry (NOU 2005:14 På rett kjøl. Ny skipssikkerhetslovgivning). Ministry of Trade and Industry. “Adoption of the Ship Safety Act”. Proposal to the Storting (Ot.prp.nr 87 (2005–2006) Om lov om skipssikkerhet (skipssikkerhetsloven)).

The Russian Federation Constitution of the Russian Federation (Konstituciya Rossiyskoy Federatsii). Adopted on 12 December 1993. Rossiyskaya Gazeta, No. 7, 21.01.2009 (including amendments of 30.12.2008). On the Arbitrazh Courts of the Russian Federation (Ob arbitazhnyh sudah v Rossiyskoy Federatsii). Federal constitutional law # 1-ФКЗ of 28 April 1995. On the Court System of the Russian Federation (O sudebnoy sisteme Rossiyskoy Federatsii). Federal constitutional law # 1-ФКЗ of 31 December 1996. On Courts of General Jurisdiction of the Russian Federation (O sudah obshchey yurisdikcii v Rossiyskoy Federatsii). Federal constitutional law # 1-ФКЗ of 7 February 2011.

Federal Statutes On the State border of the Russian Federation (O gosudarstvennoy granitse Rossiyskoy Federatsii) Federal Law # 4730-1 of 1 April 1993. Criminal Code of the Russian Federation (Ugolovnyy kodeks Rossiyskoy Federatsii). Federal Law # 63-ф3 of 13 June 1996.

330   List of Sources On the Internal Maritime Waters, Territorial Sea and Contiguous Zone (О vnutrennih morskih vodah, territorial’nom more i prilezhashchej zone Rossiyskoy Federatsii). Federal Law # 155-Ф3 of 16 July 1998. On the Exclusive Economic Zone of the Russian Federation (Ob isklyuchetl’noy ekonomicheskoy zone Rossiyskoy Federatsii). Federal Law # 191- Ф3 of 18 November 1998. Merchant Shipping Code of the Russian Federation (Kodeks torgovogo moreplavaniya Rossiyskoy Federatsii). Federal Law # 81-ф3 of 30 April 1999. Criminal Procedure Code of the Russian Federation (Ugolovno-processual’nyy kodeks Rossiyskoy Federatsii). Federal Law # 174-ф3 of 18 December 2001. On the Protection of Environment (O zashchite okruzhayushchey sredy). Federal Law # 7-ф3 of 20 December 2001. Code of Administrative Infringements (Kodeks Rossiyskoy Federatsii ob administrativnyh pravonarusheniyah). Federal Law # 195- ф3 of 30 December 2001. Amendments to the Criminal Code. Federal Law no. 46-Ф3 of 9 April 2007. Amendments to the Criminal Code. Federal Law # 420-ф3 of 7 December 2011.

Federal Regulations Rules on the Navigation on the Northern Sea Route (Pravila plavaniya po Severnomu morskomu puti), Ministry of Sea Transport of the Soviet Union, 14 September 1990. “On the adoption of rules of adoption and approval of norms of maximum levels of concentrations of harmful substances and norms of the maximum permitted harmful impact on the maritime environment and natural resources of the internal maritime waters and territorial sea of the Russian Federation” (Prikaz Ob utverzhdenii pravil razrabotki i utverzhdeniya normativov predel’no dopustimyh koncentraciy vrednyh veshchestv i normativov predel’no dopustimyh vrednyh vozdeystviy na morskuyu sredu i prirodnye resursy vnutrennih morskih vod i territorial’nogo morya Rossiyskoy Federatsii), Decree # 208 of 10 March 2000. “On the adoption of the list of harmful substances the dumping of which in the exclusive economic zone of the Russian Federation from ships, other floating devices, aeroplanes, artificial islands and installations is prohibited.” (Postanovlenie ob utverzhdenii perechnja vrednyh veshchestv, sbros kotoryh v isklyuchitel’noy ekonomicheskoy zone Rossiyskoy Federatsii s sudov, drugih plavuchih sredstv, letatel’nyh apparatov, iskusstvennyh ostrovov, ustanovok i sooruzheniy zapreshchen), Decree of the Government of the Russian Federation of 24 March 2000 # 251. “On the adoption of levels of permitted concentrations and conditions of discharge of harmful substances in the exclusive economic zone of the Russian Federation” (Postanovlenie Ob utverzhdenii predelov dopustimyh koncentraciy i usloviy sbrosa vrednyh veshchestv v iskl’uchitel’noy ekonomicheskoy zone Rossiyskoy Federatsii), Decree of the Government of the Russian Federation of 3 October 2000 # 748. “On the adoption of the methodology for the calculation of damage to water objects caused by infringement of the applicable legislation on water resources” (Prikaz Ob utverzhdenii metodiki ischisleniya razmera vreda, prichinennogo vodnym ob’ektam vsledstvie narusheniya vodnogo zakonodatel’stva), Decree # 87 of 13th April 2009 of the Ministry of Natural Resources of the Russian Federation. “On the approval of rules for the registration of ships and rights over them in sea ports” (Prikaz ob utverzhdenii pravil registracii sudov i prav na nih v morskih portah). Order of the Ministry of Transport # 277 of 9 December 2010. “On the accession of the Russian Federation to the Protocol of 1997 to amend the International convention for the prevention of pollution from ships, 1973, as modified by Protocol 1978 relating thereto” (Postanovlenie o prisoedinenii Rossiyskoy Federatsii k protokolu 1997 goda ob izmenenii mezhdunarodnoy konvencii po predotvrashcheniyu zagryazneniya s sudov 1973 goda, izmennenoy protokolom 1978 goda k nej), Decree of the Government of the Russian Federation # 203 of 24 March 2011.

List of Sources   331 Plenum of the Supreme Court of the Russian Federation “On the practice of application by courts of legal acts on liability for ecological violations”. Resolution No. 14 of 5 November 1998. “On application by courts of general jurisdiction of the commonly recognised principles and norms of the international law and the international treaties of the Russian Federation”. Resolution No. 5 of 19 October 2003. “On court practice with respect to the application of legislative acts on liability for ecological violations.” Resolution No. 14 of 5 November 1998.

Cases Ampleev v. Border guard (maritime inspectorate), Case # 12-131/11, Murmansk City Court Oktyabr district (date unknown). Amurskoe parohodstvo (“Sormovskiy-117”) v Ministry of Natural Resources (Maritime inspectorate),Case # Ф03-A73/04-2/3023, the Cassation Instance of the Federal Arbitrazh Court of the Far-East Region, the Cassation Instance of the Federal Arbitrazh Court of the Far-East Region, judgment of 24 November 2004. Amurskoe parohodstvo (“Professor Kerichev”) v Ministry of Natural Resources (Maritime inspectorate), Case # Ф03-A73/04-2/3531, the Cassation Instance of the Federal Arbitrazh Court of the Far-East Region, judgment of 22 December 2004. Korobeynik A.N. (Case number not available) the Lenin district court of the City of Novorossiysk (Russia), Judgment of 15 July 2009. Malyshev. (Case number and the date of the judgment not available). The Lenin District Court of Rostov-na-Donu. Medvedev. (Case number not available). The Lenin district court of the City of Novorossiysk (Russia), judgment of 18 April 2010. Prosecutor Maksimchuk (Kamchatkiy Inter-district Environmental Prosecutor’s Office) v. K. (Case number not available). The City Court of Petropavlovsk-Kamchatskiy, Kamchatka region, judgment of 24 March 2010. Strabe. (Case number not available). The City Court of Eysk, judgment of 7 October 2010.

Other Cases Sally and Newton (France), Bulletin des Lois (1806), No. 126, 602. The Schooner Exchange v. McFaddon and others, 7 Cranch 116, 11 U.S. 116, (1812) WL 1310 (U.S.Pa.), 3 L.Ed. 287. Mali v. Keeper (the Wildenhus). 120 U.S. 1, 7 S.Ct. 385 (1880). Lauritzen v. Larsen. 345 US 571, 582 (1953). Nevada v. Hall, 440 U.S. 410, 416, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979) United States of America v. Royal Caribbean Cruises LTD. 11 F.Supp.2d 1358, (1998) A.M.C. 1817. United States of America v. Ionia Management S.A., US Court of Appeals, Second Circuit, 555 F.3d 303, 2009 A.M.C. 153, 38 A.L.R. Fed. 2d 767. Riksåklagaren mot Capri Marine Limited. The Supreme Court of Sweden (11 May 2004). ND-2004-1. The Queen on the application of the International Association of Independent Tanker Owners (Intertanko) and others v. Secretary of State for Transport, [2006] EWHC 1577. The Court of First Instance (Paris), 11th Chamber, judgment of 16 January 2008. The Erika.

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Index Absentia, trials in  194 Accidental pollution. See also negligent pollution  46–47, 204–206 Accused, rights of. See also human rights of the crew  182, 192–193 Active personality principle. See under nationality: principle of jurisdiction Acute pollution. See Pollution Control Act (Norway) Administrative sanctions  289, 296, 298 Advocate General. See court practice: EU Applicable international rules and standards. See also MARPOL  106, 182–183 Arctic Barents Sea  207 bilateral cooperation Norway-Russia  207 historic waters  302 Northern Sea Route  305 Arisan, case of  273 Arrest. See detention Bail. See financial security Barents Sea. See under Arctic Baselines pollution within. See internal waters straight  88, 271 n. 275, 302 Beneficial shipowner. See under domicile, State of Black List. See also Paris MOU  184 n. 280, 318 Bond. See financial security Care, duty of. See under negligent pollution Casualty, maritime. See also incident of navigation  80, 145–146 CDEM standards  60–61, 81, 106, 307 Civil liability  40, 63–64, 212 Classification societies. See also Erika, case of  159–161, 243 Clear grounds. See under inspection Clear objective evidence. See major damage

Coastal State jurisdiction contiguous zone, within  104–105 EEZ, within  65–69, 106–111, 141–143 high seas  69–72, 78–79, 113–114, 144–145 internal waters, within  130–131 limits on. See safeguards penalties, right to impose  135, 186–188 territorial sea, within  55–58, 100–106, 132–135 UNCLOS generally  5–7 Codification  5 n. 7, 6–7, 32, 33 Collision. See also incidents of navigation  78, 121–123 Common transport policy. See EU: generally Concurrent jurisdiction, allocation of  155–157, 181 See also safeguards: suspension of proceedings Confiscation. See also monetary penalties documents, of  187, 287 property, of  187 Conflict of jurisdictions. See concurrent jurisdiction Contiguous zone  104–105 Corporate criminal liability  269–270, 289 Court practice EU  21–22 France  93, 228–233, 234 n. 125 Norway  261–269, 273–274, 275 Russia  291–292, 293 n. 361, n. 364, 294, 296 n. 378, 301, 306, 309 Sweden  141–142 USA  89, 123, 131, 136, 151 n. 158 Crew, human rights of. See human rights of the crew Crime, environmental EU  50, 211 generally  39–42, 201–206 Norway  260–261 Russia  290 UNCLOS  39–40 Crime, maritime. See universal jurisdiction

342   Index Criminal Code (Russia)  289–290, 296 Criminal enforcement coastal State. See coastal State jurisdiction flag State. See flag State jurisdiction nationality State  140 port State. See port State jurisdiction Criminalization of negligent pollution. See under negligent pollution Criminal jurisdiction coastal State, of. See coastal State jurisdiction concurrent. See concurrent jurisdiction extraterritorial, generally. See also extraterritorial jurisdiction  4–5, 24, 70 flag State, of. See flag State jurisdiction foreign perpetrators, over. See also coastal State jurisdiction  38, 41, 53–54, 57, 62 nationals abroad, over  72–75, 238, 277, 299 port State, of. See port State jurisdiction territorial. See territoriality principle of jurisdiction Convention on the protection of environment through criminal law 42, 50, 73, 238 Criminal liability EU. See EU directives generally  63-65, 202–203 Customary rules. See codification Detention. See also prompt release definition of  163–165 EEZ, within  109-110 high seas, on  112–113 Norway  284–287 Russia  308–309 territorial sea, within  101, 103 unlawful, consequences of  150–151 Directives. See EU Directives Discharge standards. See MARPOL Discharge violation criminalization, of  35–42, 202–206 definition, of. See MARPOL: discharge, definition under evidence, of  109, 319 intentional. See also wilful and serious pollution  204, 324 minor  213, 235 negligent. See negligent pollution Discrimination  193–194 Domicile, State of  86 Double criminality  72, 238–239, 277, 299 n. 39 Double jeopardy. See ne bis in idem

ECJ. See under EU: Court of Justice EEZ, generally. See also coastal State jurisdiction  66–67 Effects doctrine. See also extraterritorial jurisdiction  144, 154, 244–245 EMSA  238 Enforcement coastal State. See coastal State jurisdiction excessive. See also safeguards  102, 103, 158 flag State. See flag State jurisdiction port State  81–82, 83, 149–150, 151–154, 246–247 Environmental crime. See crime, environmental Erika, case of  160–161, 228–235 EU conflict of jurisdiction, rules  254 Court of Justice  21–22. See also Court practice: EU directives. See EU directives  framework decisions  210–212, 238, 254 generally  19–22, 210–211 harmonization of penalties. See EU directives legal certainty, principle of  220, 222 Lisbon Treaty  210, 250 MARPOL, and  213–214, 216–217, 218–227 UNCLOS, and  214–215, 219–220, 224, 240–242, 250–251 EU directives. See also EU  coastal State enforcement  248–249 corporate liability  227–228 definition of discharge violation  213–214, 216 MARPOL, compatibility with  218–225 penalties  250–252 persons, liable  225–228 port State enforcement  246–247 Eurojust. See Prestige, case of European Community. See EU European Court of Human Rights. See human rights of the crew European Convention of Human Rights. See human rights of the crew European Maritime Safety Agency. See EMSA European Union. See EU Evidence. See under discharge violation: evidence of Excessive enforcement. See under enforcement: excessive Exclusive economic zone. See EEZ, generally Extradition  181–182 Extraterritoriality, presumption against  72

Index   343 Extraterritorial jurisdiction EU  244–245 foreigners, over  54–55, 77–79, 144–145, 148, 149 foreign vessels in ports. See port State jurisdiction foreign vessels in transit, over. See coastal State jurisdiction generally  4–5, 24, 70 nationals, over  72–75, 238, 277, 299 Norway  278–282 prescriptive. See also double criminality  70–72 Russia  310–311 Fair Treatment of Seafarers (IMO). See human rights of the crew False Statement Act (USA)  93, 136–137 Fault. See negligent pollution Financial security. See also prompt release appropriate (reasonable)  170–174 Norway  286–288 Russia  309 Fine. See monetary penalties Flags of convenience. See also genuine link  27, 139 n. 124 Flag State cooperate, duty to  127 definition of  25–26 enforcement  120–129 environmental obligations  29–32, 35–36 genuine link, with  27, 139, 183 information, duty to give  128 proceedings, right to take over. See safeguards: suspension of proceedings sanctions, duty to impose  35–36 Force, excessive use of. See also enforcement, excessive  102, 158 n. 185 Foreign vessels in ports. See port State jurisdiction Foreign vessels in transit. See coastal State jurisdiction Framework decision. See under EU: framework decisions France  93, 112, 195, 228–231, 245 n. 162 Freedom of navigation EEZ, in  65, 66, 67–68 high seas, on. See flag State: exclusive jurisdiction territorial sea, in  56, 60, 103 French principle. See also internal waters  89 Full City, case of  261–270, 286–287, 317

Generally accepted international rules and standards. See also MARPOL  32–33, 59, 67 Geneva Conventions. See also codification  6–7 Genuine link  27, 139, 183 Gross negligence. See under negligent pollution: serious Governmental vessels. See also immunity  34, 159 Harmonization of criminal law and policy EU  40–41, 250–253 international  41–42, 43 High seas  65, 60–70 Historic waters  302 Hot pursuit  113–114, 308 Human error. See also safety management  49, 204 Human rights of the crew. See also prompt release  112, 186, 193–199 Ice-covered areas  190–192, 306 Immunity  159–161 IMO. See also MARPOL  8, 33, 36–37 Imprisonment. See also Safeguards  164, 206, 262, 273 In absentia. See absentia, trials in Incident of navigation. See also collision  74, 78–79, 121–124, 145–146 Innocent passage. See also territorial sea criminal sanctions, and  57–62 internal waters, through  99 n. 7 right of  56–58, 101–103, 105 Russia  301–302 Inspection clear grounds for  108–109, 162–163 EEZ, within  107–109 EU directives, obligations under  235 Norway  276, 283–284 rules applying to  162–163 Russia  302 n. 405, 305, 308 territorial sea, within  101, 103 Intentional pollution  204, 324 Internal waters criminal enforcement, within  131 French principle  89 generally  88 straight baseline, enclosing  88 International comity  89 International law codification, of. See codification environmental crime, and  39–42 EU, and  214, 223, 250 Norway  274–275

344   Index Russia   289, 300, 307 soft law  41 International Maritime Organization. See IMO International Tribunal on the Law of the Sea (ITLOS). See prompt release Intertanko, case of. See also EU directives  217–218, 240, 242 Intervention on the high seas. See also coastal State jurisdiction  111–115, 145–146 Investigation flag State, obligation  125, 126–128 foreign vessels, of. See also inspection  162–163 ISM Code. See also safety management  50, 228, 256, 269 ITLOS. See prompt release Jurisdiction. See criminal jurisdiction Jail. See imprisonment Legal certainty  220, 280–281, 317 Legality, principle of  23 n. 1, 24, 220, 289 n. 346 Liability. See criminal liability Lisbon Treaty. See under EU  19 n. 58, 210, 211 n. 28, 250 Locus standi  161 Lotus, case of  53–54, 70, 78, 116–119 Major damage. See also coastal State jurisdiction: EEZ, within  109–110, 180 Maritime accident. See incidents of navigation Maritime crime. See universal jurisdiction MARPOL accidental pollution  46–47 CDEM  60–61, 81, 162 criminal penalties  36, 43, 46–48, 214–215 discharge, approved  48 discharge, definition under  44–46 discharge, prohibited  45 EU directives, compatibility with. See under EU directives exemption from liability  46–47 fault, standard of  45, 47–48 generally  8, 33–35 oil, pollution by  45–46 oil record book  48–49 negligent pollution  47–48 Norway  257–258, 260 report, duty to  49 Russia  304–305, 306–307

sanctions, under  35–36 strict liability  65, 226 UNCLOS, link to  8, 33 Master. See also human rights of the crew arrest of. See detention care, duty of. See also negligent pollution  262–265 MARPOL  46–47, 49, 64 Nationality state, of  140, 184–185 Norway  257, 260 Russia  294–295 Memorandum of Understanding. See Paris MOU Mens rea. See intentional pollution Monetary penalties. See also safeguards  186–187, 203 Nationality principle of jurisdiction  72–75, 77, 156, 237–239 ships without. See also genuine link  26, 112 Navigation, incidents of. See incidents of navigation Ne bis in idem  181 n. 269, 182, 254, 299 Near-accidents  235–236, 265 n. 245, 267, 269 Necessity. See also intervention on the high seas  80, 145, 147 Negligent pollution care, duty of  223, 226, 262, 264, 266 criminalization, of  47–48, 205 EU directives  221–224, 242 MARPOL  46 serious  50–51 No more favourable treatment  44 n. 82 Non-monetary penalties. See imprisonment Northern Sea Route  305 Norway court cases  261–269, 273-274, 275 criminal jurisdiction  270–273 extraterritorial jurisdiction  270, 278–281 flag State  275–276 legal system  17–19 Penal Code  260–261 Pollution Control Act  258–260 Ship Safety Act  258–260 Objective territoriality. See also effects doctrine  92, 144, 244 Oil, pollution by. See MARPOL OILPOL 1954  34 Oil record book falsification of. See False Statement Act   (USA) MARPOL  48

Index   345 Omission. See under negligent pollution: care, duty of Open register. See flags of convenience Operational pollution  45, 68. See also intentional pollution Opinio juris  11–12, 41 Paris MOU. See also port State control  109 n. 34, 318 Passive personality principle  77 Penalties. See sanctions Personality principle nationality principle. See under nationality: principle of jurisdiction passive personality  77 Pollution Control Act (Norway)  258–260 Pollution, wilful and serious territorial sea, within  65, 101, 134–135, 240–241 Ports, voluntarily call at. See also port State jurisdiction  150 Port of registry home port  26, 297 n. 385 information on, duty to submit  107, 128 Port State control. See also Paris MOU  109 n. 34, 151, 166 n. 215, 184 n. 280 Port State jurisdiction EU  246–248 Norway  281–282 Russia  311 UNCLOS  149–154 Precautionary principle  262 n. 232 Preparatory materials EU  21 Norway  17, 19 Russia  14 Prestige, case of  156–157, 196–198, 234 Proceedings. See safeguards: suspension of proceedings Prompt release appropriate financial security,   determination of  170–174 flag State, role of  168–170 non-financial conditions for  172–174 Norway  286 Russia  309 Prosecution of ship-source pollution (generally)  1–2, 202–205 Reckless pollution. See negligent pollution Recognized rights of accused. See under human rights of the crew Repatriation, prohibition of. See detention Reporting of incidents MARPOL  49

Pollution Control Act (Norway)  259–260 Reasonable bond. See financial security: appropriate Rights of the crew. See human rights of the crew Russia bilateral agreements  207 court cases  291–292, 293 n. 361, n. 364, 294, 296 n. 378, 301, 306, 309 Criminal Code  289–290, 296 extraterritorial jurisdiction  299, 310–311 flag State  296–298 legal system  12–16 MARPOL  304–307 negligent pollution  291 Safeguards. See also human rights of the crew investigation and detention  162–165 non-monetary penalties, limitations on  187 prompt release  165–176 suspension of proceedings  176–185 Safety at Sea Act (Norway)  255–257 Safety management. See also ISM Code  49–50 Sanctions administrative  142, 202–203 criminal (generally)  202–206 EU. See EU: penalties MARPOL. See MARPOL: sanctions under non-monetary  252. See also imprisonment UNCLOS. See UNCLOS, articles: Article 230 Seafarer rights. See human rights of the crew Seafarer State. See under nationality: principle of jurisdiction Seaworthiness  131, 166 Seizure. See detention Self-defence. See necessity Serious negligence. See under negligent pollution: serious Ship registration. See also flag State  28, 73, 275, 297 Shipowner, liability of  64, 136, 203, 212, 225 Soft law  41 State practice (generally)  11–12 Strict liability  65, 226, 291 Substandard ship  105–106 Suspension of proceedings. See under safeguards Territoriality principle of jurisdiction. See also objective territoriality  52, 87–88, 90–91, 115–116, 143

346   Index Territorial sea. See also coastal State jurisdiction criminal jurisdiction  130, 132–134 detention of foreign vessels, within  100, 105–106 generally  55–56 innocent passage through  56–57, 58–59 inspection of foreign vessels, within  100–103 prescriptive jurisdiction  59–61 Transfer of proceedings. See safeguards: suspension of proceedings Travaux préparatoires. See preparatory materials Treaty of Lisbon. See EU: Lisbon Treaty UNCLOS generally  6–10, 30, 313–314 EU, and  11, 20–21, 214–215, 219–220, 224–225 MARPOL, and  8–9, 33, 43, 59, 63 Norway, and  11, 201, 208, 272–275, 277, 279, 281 Russia, and  11, 201, 208, 300, 302, 305–306, 307–308, 310–311 UNCLOS, articles Article 2  55 n. 120, 56, 88 n. 233 Article 8  88 nn. 234, 236, 99 n. 7, 302 n. 407, 302 n. 408 Article 17  56 Article 19  105, 134, 301 n. 401 Article 21  58, 60–61 Article 24  58, 100–101 Article 25  105 n. 27, 106 n. 29 Article 27  97–98, 99, 145 n. 138 Article 33  104 Article 55  66 Article 58  66 n. 157, 111 n. 41 Article 73  173–174 Article 90  65 n. 152 Article 91  26 n. 8, 27, 116 n. 59, 139 Article 92  26 n. 11, 52 n. 109, 79, 111, 120 Article 94  27 n. 19, 28 n. 27, 32, 124, 127, 128 n. 97

Article 97  38, 76, 78–79, 112, 122–123, 175 n. 250 Article 192  30 Article 194  30 Article 105  111 n. 43, 155 n. 173 Article 108  112 Article 109  111 n. 44 Article 110  112 Article 111  105, 113–114 Article 211  32, 57–58, 59, 67, 191 Article 217  35, 126–128, 129 n. 100 Article 218  7, 81–86, 149–154, 184, 311, 315, 320–321 Article 219  131, 152 n. 163, 235 Article 220  68–69, 98–110, 113–115, 132–135, 141–143, 148, 318 Article 221  79–80, 124 n. 88, 145–148 Article 223  157 n. 181 Article 225  102, 158 Article 226  162–163, 165–169, 174–176 Article 227  158, 193 Article 228  177–183, 253, 318 Article 230  187–193, 198 n. 324, 272– 275, 322 Article 231  159 n. 186, 186 n. 286 Article 232  150, 158 Article 234  190–192, 306 Article 290  176 Article 292  165, 169–170, 173, 175–176 Article 295  176 United States  82–83, 89–90, 93–94, 100 n. 10, 123, 135–137, 151 n. 158 Universal jurisdiction  53, 85–86, 154–155 Vessel, foreign. See coastal State jurisdiction  Vessel-source pollution. See MARPOL prosecution of (generally)  1–2, 202–205 Vetting  233 Violation. See discharge violation Warships. See also immunity  34, 159 Wilful and serious pollution. See pollution, wilful and serious