International legal framework for
environmental maritime crime:
UNCLOS, IMO and MARPOL
Dr. Alla Pozdnakova
Scandinavian Institute of Maritime Law, University of Oslo
26/29 June - Dipartimento di Scienze Giuridiche
Unisalento
Room R 27
Environmental maritime crime – is there a
uniform international approach?
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Criminalize or not? What kind of conduct?
What conduct is serious enough?
Standard of fault
Who can be criminally punishable?
Types and levels of penalties
What State is entitled to criminalize and prosecute?
 UNCLOS and MARPOL
 Shipping sector is not immune to criminal prosecutions
for pollution violations
 Exxon Valdez, Erika, Prestige, MV Full City (2010,
Norway)
 Problems pertaining to effective prosecution
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Detection of unlawful discharges
Prosecuting the right individuals/organizations
Definition of a pollution crime
Jurisdiction to enact and enforce criminal sanctions –
international law implications
 The problem: shipping is international but criminal law
is domestic
 Criminalization of conduct and enforcement can
encroach upon other State’s sovereignty
 Central «actors»
 International organizations – adopt international
standards
 United Nations
 International Maritime Organization (IMO)
 European Union
 States – enact national legislation and enforce sanctions
 Nullum poena sine lege
 Enforcement and imposition of penalties – only at national
level
 Relevant national (public) «actors»
 Legislator (Parliament/government)
 Monistic/dualistic legal systems
 Public authorities such as police/prosecutor/investigator
 National courts
 Ensure that national rules are applied in compliance with
international law
International regulatory framework
United Nations Convention on the Law of the Sea
(Montego Bay, 1982, in force as of 1994), UNCLOS
 Part XII UNCLOS “Protection and preservation of the marine
environment”
codifies customary international law of the sea
develops new rules (especially with respect to protection of
the marine environment!)
 UNCLOS Part XII
requires States to prevent and reduce pollution of seas,
including from ships
determines the scope of State jurisdiction over perpetrators
of ship-source pollution
Contains a number of provisions indicating that sanctions
of certain scope are to be introduced and applied
 UNCLOS refers consistently to
 “international rules and standards” for the prevention,
reduction and control of marine pollution and violation
of “applicable international rules and standards”
 What are these “international rules and standards”?
 International standards (e.g.MARPOL)
 National standards conforming and giving effect to
international standards
 National standards exceeding international standards?
 International Maritime Organization (IMO) – “competent
international organization”
 MARPOL 73/78 – International Convention for the
prevention of pollution from ships
 International Safety Management Code (ISM
Code/SOLAS, Chapter IX, "Management for the Safe
Operation of Ships")
Differences in functions of MARPOL and
UNCLOS
 MARPOL lays down international rules and standards
for the prevention of pollution from ships
 UNCLOS sets forth international rules of jurisdiction
applicable to ship-source pollution
 Do UNCLOS and/or MARPOL introduce a criminal law
regime?
 The treaties require adequate sanctions to be enacted by
flag States but do not require that s
 Some provisions are directly relevant for defining the
environmental maritime crime and determining limits of
jurisdiction over perpetrators of such crimes
MARPOL - structure
 Convention 1973
 Protocol 1978
 Protocol 1997 (Annex VI)
 Annex I Oil pollution
 Annex II Liquid noxious substances
 Annex III Harmful Substances Carried by Sea in Packaged Form
 Annex IV Sewage
 Annex V Garbage
 Annex VI Air pollution from ships
MARPOL
 Objective
 to eliminate intentional pollution and to reduce/minimize
accidental pollution from ships
 Scope (Annex I)
 all discharges (by substances regulated in Annexes) are
prohibited except where certain conditions are met:
 Regulation 9: standards and levels of permitted discharges
 «zero pollution» except in «special areas» (Reg. 10)
 some ships are excluded (governmental/naval)
 Does MARPOL set up a criminal law regime?
 2 relevant provisions
 Article 4
 Regulation 11 of Annex I (and corresponding, albeit not
identical rules in other Annexes)
Article 4 MARPOL «Violation»
 Any violation of the requirements of [MARPOL] shall be
prohibited and sanctions shall be established therefor
under the law of the Administration of the ship
concerned [i.e. flag State] wherever the violation occurs
 Penalties shall be adequate in severity to discourage
violations of [MARPOL]
MARPOL - exemption
 Prohibited pollution can be «excused» in three cases
(Reg. 11 of Annex I):
1. discharges necessary for securing the safety of the ship
or the saving of life at sea
2. discharges (approved by the flag state) for the purposes
of combating specific pollution incidents
MARPOL – exemption (cont’d)
3. Discharges resulting from damage to the ship or its
equipment
 provided all reasonable precautions have been taken after
the occurence of the damage or discovery of the discharge
for the purposes of preventing/minimizing the discharge
 except if the owner or the master acted either with intent to
cause damage or recklessly and with knowledge that
damage would probably result
 The problem: verbatim application is not feasible
 Sanctions can also be imposed not for the discharge as
such but for the related violations
 Falsification of oil record books (USA practice)
 Omission to notify the emergency/to report pollution
incident («Full City» in Norway)
 Failure to ensure proper safety management system onboard (violation of ISM rules)
 Harmonization of criminal law provisions and uniform
application – are there any impediments to this?
 Political and economic interests
 Flag States v coastal States
 Pragmatic considerations – costs of active enforcement
 Legal issues – is the State entitled to criminalize and
enforce sanctions?