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Criminal Jurisdiction over Perpetrators of Ship-Source Pollution
International Law, State Practice and EU Harmonisation
Author:
Criminal Jurisdiction over Perpetrators of Ship-Source Pollution: International Law, State Practice and EU Harmonisation provides a thorough analysis of criminal jurisdiction over the perpetrators of ship-source pollution. Criminal sanctions for discharge violations committed by sea-going vessels represent an issue of critical concern in the field of International Law, given the many devastating pollution cases which have occurred at sea, and the multitude of complications inherent in the criminal prosecution of the perpetrators of these pollution cases. The varying substantive and geographical reach of any given State’s criminal law poses unique challenges in prosecution, addressed in a comprehensive discussion which includes limitations posed by the UN Law of the Sea Convention. Additionally, consequences arising from the potential conflict between the EU harmonization measures within the field, and UNCLOS are detailed in the monograph.
Lawyers, academics, and legal researchers, will appreciate Criminal Jurisdiction over Perpetrators of Ship-Source Pollution: International Law, State Practice and EU Harmonisation as a thorough source of information on the existing rules and practice in criminal cases involving pollution violations from ships.
Lawyers, academics, and legal researchers, will appreciate Criminal Jurisdiction over Perpetrators of Ship-Source Pollution: International Law, State Practice and EU Harmonisation as a thorough source of information on the existing rules and practice in criminal cases involving pollution violations from ships.
Alla Pozdnakova is a post-doctoral research fellow at the Scandinavian Institute of Maritime Law of the Faculty of Law at the University of Oslo and an author of several publications on topics of maritime law, EU law and competition law.
CRIMINAL JURISDICTION OVER PERPETRATORS OF SHIP-SOURCE POLLUTION:
INTERNATIONAL LAW, STATE PRACTICE AND EU HARMONISATION
PREFACE
LIST OF ABBREVIATIONS
PART I INTRODUCTION
PART II 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
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 III 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
PART IV 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
PART V SUMMARY AND CONCLUSIONS
LIST OF SOURCES
International documents
TREATIES
REGIONAL AND BILATERAL AGREEMENTS
INTERNATIONAL COURT OF JUSTICE
INTERNATIONAL TRIBUNAL ON THE LAW OF THE SEA
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
BIBLIOGRAPHY
INTERNATIONAL LAW, STATE PRACTICE AND EU HARMONISATION
PREFACE
LIST OF ABBREVIATIONS
PART I INTRODUCTION
PART II 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
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 III 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
PART IV 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
PART V SUMMARY AND CONCLUSIONS
LIST OF SOURCES
International documents
TREATIES
REGIONAL AND BILATERAL AGREEMENTS
INTERNATIONAL COURT OF JUSTICE
INTERNATIONAL TRIBUNAL ON THE LAW OF THE SEA
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
BIBLIOGRAPHY