International legal framework for
environmental maritime crime:
UNCLOS, IMO and MARPOL
Dr. Alla Pozdnakova
Scandinavian Institute of Maritime Law, University of Oslo
26/29 June - Dipartimento di Scienze Giuridiche
Unisalento
Room R 24
International rules of criminal jurisdiction
over perpetrators of ship-source pollution
 How to ascertain what these rules are?
 No international (global) treaty on criminal jurisdiction
 1952 Brussels Convention on Penal Jurisdiction in matters
of collision and other incidents of navigation
 UNCLOS Part XII «Protection and preservation of the
marine environment»
 Flag States
 Coastal States
 Port States
 UNCLOS does not resolve all questions pertaining to
the exercise of criminal jurisdiction
 International law generally - ?
 State practice (not extensive and not easily available)
 Flag States – principal jurisdiction
 Coastal and port States – concurrent jurisdiction +
limitations on:
 the substantive contents of the national rules
 The geographical reach of national criminal law
 Territorial versus extra-territorial jurisdiction
 Prescriptive jurisdiction and enforcement jurisdiction
Selected UNCLOS provisions
 Article 211 UNCLOS «Pollution from vessels»
 Article 217 Enforcement by flag States
 Article 218 Enforcement by port States
 Article 220 Enforcement by coastal States
 Article 228 Suspension and restrictions on institution of
proceedings
 Article 230 Monetary penalties and recognized rights of
accused
Prescriptive jurisdiction
 Legality principle – essential to have a proper national
provision!
 Territorial jurisdiction versus extraterritorial jurisdiction:
can a State extend its criminal legislation to conduct
beyond its borders?
 Yes but Lotus judgment (1935, P.C.I.J.) is not popular
 Generally, some interests must be affected or certain
connections present
 E.g., Draft convention on Jurisdiction with respect to crime
 Exlusive economic zone (EEZ) – right of the coastal State to
protect the marine environment
 UNCLOS permits coastal State to legislate within its EEZ but
only to the extent of «international rules and standards»
(Article 211 «Pollution from vessels»)
 Erika case (can France apply national rules (allegedly)
exceeding international treaty for accident beyond its territorial
sea?)
 Can a non-flag State enact criminal sanctions
applicable to conduct committed beyond its territorial
sea/EEZ – i.e. on the high seas and other States’
waters?
 The answer is positive
 State of nationality
 With regard to pollution which produced effects within
legislating State’s territory (objective territorial
principle/effects doctrine)
 Article 218 UNCLOS
Enforcement jurisdiction
 More limited than prescriptive jurisdiction
 In principle, only territorial enforcement + coastal State
enforcement in EEZ
 Two aspects of enforcement:
 Jurisdiction to stop, inspect and detain a foreign ship
 Jurisdiction to prosecute and impose criminal punishment
 Jurisdiction to stop, inspect and detain:
 Location of the vessel and location of the pollution
violation (proximity/distance to the shore)
 UNCLOS is very specific on this aspect: see Article 220
(coastal State jurisdiction)
 Internal waters
 Territorial sea
 EEZ
 Jurisdiction to prosecute and impose penalties
 UNCLOS is not as specific
 Article 230 UNCLOS (only monetary penalties unless
«wilful and serious pollution in the territorial sea»)
 Article 228 take over of proceedings by flag State
Coastal State jurisdiction
 Internal waters and ports – full jurisdiction
 Territoriality principle of jurisdiction
 «French principle» or US/UK (internal affairs) approach
 Territorial sea – full jurisdiction
 NB the coastal state must not hinder the innocent passage
 There must be «clear grounds» for believing that a violation
has taken place
Coastal State jurisdiction (cont’d)
 EEZ – inspection and detention only in special
circumstances (post factum depending on the severity of
damage)
 It is only possible to request information about the ship (Article
220(3)
 substantial pollution – physical inspection (Article 220(5)
 Detention if major damage to the marine environment of the
coastal State (Article 220(6))
Coastal State jurisdiction (cont’d)
 High seas
 Non-flag States have no right to interdict polluter except
in cases of hot pursuit
 Intervention in case of a maritime casualty and Article 221
Article 220
 5. Where there are clear grounds for believing that a
vessel navigating in the exclusive economic zone or
the territorial sea of a State has, in the exclusive
economic zone, committed a violation referred to in
paragraph 3 resulting in a substantial discharge
causing or threatening significant pollution of the
marine environment, that State may undertake physical
inspection of the vessel for matters relating to the
violation if the vessel has refused to give information or
if the information supplied by the vessel is manifestly at
variance with the evident factual situation and if the
circumstances of the case justify such inspection.
 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.
 Consequences of detention of a foreign vessel and
crew
 Must be released promptly upon posting a reasonable
bond
 Article 226
 Prompt release procedure in ITLOS
Article 230
 1. Monetary penalties only may be imposed with
respect to violations of national laws and regulations or
applicable international rules and standards for the
prevention, reduction and control of pollution of the
marine environment, committed by foreign vessels
beyond the territorial sea.
 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.
Examples of enforcement by coastal State
 Full City (Norway, 2010)
 Negligent pollution (grounding) in the internal waters
 Ommision to notify the emergency
 Imprisonment changed to probation for the master, long
detention prior to trial
 Arisan (1992, Norway)
 Imprisonment for accidental pollution in the territorial sea
(UNCLOS not yet in force)
 Royal Caribbean Cruises (USA, 1998)
 Intentional pollution in other State’s waters
 False statement (fairy – tale book)
 Alambra (Sweden, 2004)
 Punishment can be imposed even if the delinquent vessel
was not detained on spot
Allocation of jurisdiction between coastal
States
 How to allocate criminal jurisdiction between two or
more coastal States affected by the same pollution
violation?
 UNCLOS does not address such situations in any detail
 The State which detained the ship first? The State with
the strongest link to the incident/greatest interest
should be allowed to prosecute
 The Eurojust decision in the Prestige case (2003) –
convenience of litigation
Port State enforcement (Article 218)
 What if the foreign vessel committed pollution on the
high seas or within other States’ waters?
 or sailed out of the coastal State’s maritime zones after
having polluted there?
 The offender may later return within the coastal State’s
territorial limits
 Or a port State may institute proceedings under Article
218
Article 218
 1. When a vessel is voluntarily within a port or at an offshore terminal of a State, that State may undertake
investigations and, where the evidence so warrants,
institute proceedings in respect of any discharge from
that vessel outside the internal waters, territorial sea or
exclusive economic zone of that State in violation of
applicable international rules and standards
established through the competent international
organization or general diplomatic conference.
Port State enforcement (cont’d)
 Delinquent foreign vessel must be voluntarily in the port
of the port State
 Unlawful seizure - ex injuria ius non oritur or male captus
bene detentus?
Article 218 (cont’d)
 No effects on the port State (or connecting factors) are
required under Article 218
 Decision by port State to inspect/institute proceedings
is voluntary
 Request by the coastal or flag State is required with
regard to pollution in the coastal State’s waters
 Important: port States could prosecute pollution
violations on the high seas, where flag State is not
taking measures – no enthusiasm in practice!
Suspension and restrictions on the
institution of proceedings (Article 228)
 Article 218
 Flag State may request transmittal of proceedings from
the port State
 The coastal State may request transmittal of proceedings
if violation occured in its internal waters, territorial sea or
EEZ
 Article 228
 Transfer of proceedings to the flag State
 Ne bis in idem
 Expiry of the right to institute proceedings against a
foreign vessel (three years)
Article 228
 Can a coastal State refuse to transfer/suspend
proceedings?
 Pollution committed within territorial sea
 Pollution committed beyond territorial sea if
 Case of major damage to the coastal State
 The State has repeatedly disregarded its obligation to
enforce effectively the applicable international rules and
standards in respect of violations committed by its vessels
Final remarks
 Need to harmonize and develop the definition of a
pollution crime and penalties
 Need to ensure better protection to the master and the
crew (UNCLOS does not achieve this)
 States must use Articles 220 and 218 more assertively
 To achieve this, more clarification of international law is
necessary
 More research on State practice is required!
Thank you!
Alla.pozdnakova@jus.uio.no