There are two fundamental instruments available to the international community for taking action against the perpetrators of illegal acts of marine pollution:

• The MARPOL 73/78 Convention relates to the prevention of pollution from ships, and to the protection of the marine environment from violations of discharge regulations which are stipulated in this Convention.;
• The 1982 UNCLOS Convention is a more universal instrument which relates to matters governing the Law of the Sea including the protection of marine environments from the activity of shipping.

Both conventions lay down the extent of enforcement powers of the Coastal State, Port State and Flag State respectively. In order to meet the aims of these two Conventions, they must be implemented in national law through appropriate legislation.

Offences against both mentioned maritime conventions usually have an international character involving bordercrossing and legal co-operation between judicial authorities. This kind of international co-operation is laid down in a number of European criminal law Conventions which are also discussed in this chapter:

• European Convention on Extradition
• European Convention on Mutual Assistance in Criminal Matters
• European Convention on the Transfer of Proceedings in Criminal Matters

Finally, the possibilities of quick and direct international Police co-operation (INTERPOL, Schengen Agreement) is briefly discussed.

The general provision in Art. 6 of MARPOL 73/78 contains the obligation of Parties acting as Flag State, Port State or Coastal State, to co-operate in the detection of violations and the enforcement of the provisions of the Convention, using all appropriate and practicable measures of detection and environmental monitoring, adequate procedures for reporting and accumulation of evidence.

Contrary to UNCLOS (see 7.3), MARPOL 73/78 does not provide that a Port State can take proceedings when a violation takes place on the high seas or in areas under the jurisdiction of another State. So in principle, MARPOL 73/78 does not deviate from the exclusive jurisdiction of the Flag State (see 7.2.1). However, a Port State may inspect a ship that enters a port or offshore terminal under its jurisdiction, which in some circumstances may lead to the detention of that ship (see 7.2.2). A Coastal State can institute proceedings under its own laws in respect of any violation that occurred within its area of jurisdiction (see 7.2.3).

The Convention provides that any violation of the Discharge Regulations or other MARPOL 73/78 requirements shall be an offence under the law of the Flag State wherever the violation occurs. If the Flag State is informed of such a violation and is satisfied that sufficient evidence is available to commence proceedings, it shall cause such proceedings to be taken as soon as possible, in accordance with its law. The Flag State shall promptly inform the Party which has reported the alleged violation, as well as the IMO, of the action taken. A Flag State may request a Port State control inspection.

MARPOL 73/78 provides that a ship may, in any port or offshore terminal of a Port State which is party to the Convention, be subject to inspection by port state control officers⁽⁵⁾ for the purpose of verifying whether the ship has discharged any harmful substances in violation of the provisions of the regulations. However, the officers appointed or authorised by that Port State are bound to special rules on inspection of ships.

A Port State may also inspect a ship when it enters the ports or offshore terminals under its jurisdiction, if a request for an investigation is received from any Party together with sufficient evidence that the ship has discharged harmful substances into the sea. The report of the investigation is then passed on to the requesting Party and the Flag State for appropriate action.

In some circumstances, MARPOL 73/78 provides that a Port State has the right to detain a ship: in cases where a ship does not carry a valid certificate on board, or when the condition of the ship or its equipment does not correspond substantially with the particulars of that certificate, the Port State carrying out the inspection shall take the appropriate steps to ensure that the ship shall not sail until it can proceed to sea without presenting an unreasonable threat of harm to the marine environment.

With respect to the ship of non-Parties, a Port State shall apply the MARPOL 73/78 requirements as may be necessary to ensure that no more favourable treatment is given to such ships.

All of this is current practice between European countries participating in the Memorandum of Understanding (MOU) on Port State Control (see 7.4).

Any violation within the jurisdiction of a Coastal State party to the Convention shall be an offence under the law of that Coastal State - whether the ship flies the flag of a Party or not - and sanctions shall be imposed under that law. A Coastal State may request a Port State control inspection.

Whenever a violation occurs within the jurisdiction of a Coastal State, that State shall either take proceedings under its own laws or report the offence to the Flag State - which shall take proceedings as described above. In such circumstances most countries choose to take proceedings under their own laws, informing the Flag State that they have done so.

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) entered into force on 16 November 1994. Most North Sea States and the EC are Parties to this convention.

UNCLOS inter alia provides jurisdiction to the Coastal States in the EEZ in addition to the sovereign rights of the territorial sea (Art. 211, § 5 and Art. 220). This is very important, since all Bonn Agreement Contracting Parties have established or are in the process of establishing an EEZ or an equivalent marine area.

UNCLOS further provides a powerful legal basis for international co-operation in exercising Flag State, Port State and Coastal State powers of enforcement in the territorial seas and EEZs or equivalent marine areas, such as the UK Pollution Zone, aiming, inter alia, at facilitating the enforcement and prosecution of MARPOL 73/78 offenders. The general UNCLOS provisions relevant to this international co-operation are discussed below.

It is important to note that these UNCLOS provisions break through the traditional supremacy of the jurisdiction of the Flag State in respect of discharge violations in areas outside the jurisdiction of a Coastal State: when a ship is voluntarily within a port, the Port State is granted extensive judicial powers in respect of a discharge violation committed by that ship outside its internal waters, territorial sea or EEZ (see 7.3.2). The provisions of UNCLOS concerning this universal Port State jurisdiction represent a key factor to successful prosecution of MARPOL 73/78 Offenders.

With respect to the prosecution of a MARPOL 73/78 offence committed in the territorial sea or EEZ of a Coastal State, UNCLOS provides the possibility for that Coastal State to:

• request a Port State to investigate a ship and report back to the Coastal State, for administrative or judicial proceedings;
• request a Port State to undertake judicial proceedings (Art. 218, see 7.3.2).

Furthermore, UNCLOS provides the possibility for a Coastal State to carry out an inspection on board and to detain or pursue a foreign ship at sea in respect of a serious discharge violation in its territorial sea or EEZ (under specific conditions) (Art. 220 + 111, see 7.3.3 and 7.3.4).

Breaking through the classic system of exclusive jurisdiction of the Flag State at sea made it necessary to establish certain guarantees to protect foreign ships. Such guarantees are provided with regard to the procedure of and conditions for inspecting ships (Art. 220 and 226), the suspension and restrictions on instituting proceedings (Art. 228, see 7.3.5), the notification to the Flag State (Art. 231, see 7.3.6), and liability of States arising from enforcement measures (Art. 232).

If a vessel commits a violation of MARPOL 73/78, the Flag State shall provide for immediate investigation and where appropriate institute proceedings in respect of the alleged violation, irrespective of where the violation occurred or where the pollution caused by such violation has occurred or has been spotted. 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.

At the request of any State, the Flag State shall investigate any violation alleged to have been committed by vessels flying their flag. If there is sufficient evidence available, Flag States shall without delay institute proceedings in accordance with their laws, and shall promptly inform the requesting State and the IMO of the action taken and its outcome.

In cases where the discharge violation occurs in the internal waters, territorial sea or EEZ of another State however, the Port State may only institute proceedings upon request of that Coastal State, the Flag State, or another State damaged or threatened by the discharge violation. The Port State shall, as far as practicable, comply with these requests. It shall likewise, as far as practicable, comply with requests from the Flag State for investigation of a violation, irrespective of where the violation occurred. The records of the investigation carried out by a Port State shall be transmitted upon request to the Flag State, the Coastal State or a third State involved.

A Port State may also institute proceedings when the violation, committed in the internal waters, territorial sea or EEZ of another State, has caused or is likely to cause pollution in its own internal waters, territorial sea or EEZ.

Any proceedings instituted by the Port State on the basis of an investigation may be suspended at the request of the Coastal State (when the violation has occurred within its area of jurisdiction). The evidence and records of the case, together with any bond or other financial security, shall in that event be transmitted to the Coastal State. Also the Flag State can suspend proceedings instituted by the Port State (see 7.3.6).

In cases where a vessel within one of its ports or off-shore terminals is in violation of applicable international rules and standards relating to seaworthiness and thereby threatens damage to the marine environment, Art. 219 of UNCLOS provides that the Port State, upon request or on its own initiative, has the authority to take administrative measures to prevent the ship from sailing.

Port States enforcement could be vital for the co-operation between North Sea States as to illegal discharges committed by foreign ships in each other’s territorial seas or EEZs. The amendment to the general German Penal Code, which gives a German court the possibility to prosecute criminal offences against MARPOL 73/78 discharge regulations that took place outside the German territorial sea and EEZ, is an example of this: at the request of another North Sea or Baltic Coastal State, proceedings can be brought before a German court for a case involving a foreign ship which has offended discharge regulations in the territorial sea or EEZ of that other Coastal State, provided that the act is also liable to prosecution in that Coastal State.

For the purpose of enforcement, Coastal States may in respect of their EEZ adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to MARPOL 73/78.

When a vessel is voluntarily within a port or at an off-shore terminal of a Coastal State, that State may institute proceedings in respect of any violation of its laws and regulations adopted in accordance with MARPOL 73/78 and UNCLOS, when the violation has occurred within its territorial sea or EEZ.

If there are clear grounds for believing that a vessel navigating in the territorial sea of a Coastal State, has, during its passage therein, violated laws and regulations of that State adopted in accordance with MARPOL 73/78, that Coastal State may undertake a physical inspection of the vessel "on the spot", relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.

Coastal States may also enforce discharge regulations in their EEZ in accordance with Art. 220 of UNCLOS, which provides that a Coastal State may request information from a ship navigating in the EEZ or the territorial sea and suspected of a violation in the EEZ. In case of a serious pollution, the Coastal State may undertake a thorough inspection of such a ship "on the spot" (following specific procedures; Art. 226), or even institute proceedings, including detention of the vessel. The extent of these actions that can be undertaken by a Coastal State at sea depends on the available evidence, the gravity of the violation and the magnitude of (possible) damage to the marine environment. Some governments are in the process of establishing objective criteria to define such situations.

In case of illegal pollution within the area of jurisdiction of a Coastal State, Art. 218 of UNCLOS provides for co-ordination and co-operation between the Coastal State and Port State (see 7.3.2).

Art. 111 regulates the right of hot pursuit, which under certain conditions allows a Coastal State to pursue a foreign ship in the event of a violation of its laws and regulations committed within the waters under its jurisdiction, including the EEZ. It provides that the right ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State. The text of the Convention does not preclude the possibility of co-operation between States on this matter; in other words, it seems evident that this restriction can be lifted in bi- or multilateral agreements.

Art. 223 of UNCLOS provides the obligation for States instituting proceedings to take measures to facilitate the hearing of witnesses and the admission of evidence submitted by authorities of another State, and to facilitate the attendance at such proceedings of official representatives of e.g. the Flag State and any State affected by pollution arising out of any violation.

States shall promptly notify the Flag State and any other State concerned of any measures taken against foreign vessels, and shall submit to the Flag State all official reports concerning such measures. However, with respect to violations committed in the territorial sea, the foregoing obligations of the Coastal State apply only to such measures as are taken in legal proceedings.

Proceedings initiated by a State to impose penalties in respect of any violation of MARPOL 73/78 by a foreign vessel beyond its territorial sea, shall be suspended upon the taking of proceedings by the Flag State within six months of the date on which proceedings were first instituted. When the Flag State has requested a suspension, it shall in due course make available to the State previously instituting proceedings a full dossier of the case and the records of the proceedings. Only when proceedings instituted by the Flag State have been brought to conclusion, the suspended proceedings shall be terminated.

The proceedings that were first instituted shall not be suspended however if they relate to a case of major damage to the Coastal State or if the Flag State in question has repeatedly disregarded its obligation to enforce MARPOL 73/78 effectively.

The Maritime Authorities of Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, The Netherlands, Norway, Poland, Portugal, Russia, Spain, Sweden, and the United Kingdom cooperate in the Paris Memorandum of Understanding on Port State Control (MOU) on 26 January 1982. This Memorandum took effect on 1 July 1982. Some of the countries have acceded afterwards.

The MOU provides that these Maritime Authorities will maintain an effective system of Port State control with a view to ensuring that, without discrimination as to flag, foreign ships visiting the ports under their jurisdiction comply with the standards laid down in the relevant maritime conventions, inter alia MARPOL 73/78.

The MOU is primarily an administrative instrument for the detection of deficiencies of ships as regards maritime conventions including MARPOL 73/78, and for administrative exchange of information. When an inspection is carried out under the MOU and deficiencies are detected which are hazardous to the marine environment, the Maritime Authority will ensure that the hazard is removed before the ship is allowed to proceed to sea and for this purpose will take appropriate action, which may include detention. However, when exercising control under the Memorandum, the Authorities will make all possible efforts to avoid unduly detaining or delaying a ship. It should also be noted that in applying a relevant legal instrument for the purposes of Port State control such as MARPOL 73/78, the authorities will ensure that no more favourable treatment is given to ships entitled to fly the flag of a State which is not a Party to that instrument.

The Maritime Authority of a Port State will, upon the request of a Coastal State or Flag State, visit in port the ship suspected of a MARPOL 73/78 violation and carry out an administrative and technical inspection in order to obtain information, to secure evidence relating to the suspected violation, and where appropriate to take a sample of any alleged pollutant.

The MOU has introduced an electronic mail facility (mailbox system) which provides fast communication between Port State control authorities and is one of the means used to request inspection in the next port of call of a ship suspected of having violated the discharge regulations. The speed of this MOU mailbox system is certainly an advantage in facilitating prosecution of MARPOL 73/78 offenders, and it could have a strong deterrent effect. However, although the technical report may be part of the judicial file, the Port State controls under the MOU are of an administrative and technical nature and are not always adequate to deliver valid or sufficient evidence for criminal prosecution purposes. As mentioned above, the main purpose of the MOU was - and still is - to prevent the operation of sub-standard ships, and sanctions do not necessarily follow.

Also within the MOU, an information system on Port State Control inspections has been agreed and developed. The MOU authorities send daily messages on all the ships inspected in their national ports to the "Centre Administratif des Affaires Maritimes" at Saint-Malo in France (C.A.A.M.). The C.A.A.M. compiles all received messages in the central Port State Control information system. Port State Control officers can directly consult this database. Other authorities can do this by contacting the MOU. The Secretariat, which is provided by the Ministry of Transport and Public Works and Water Management is in The Hague (Netherlands).

The possibility of also using the network of MOU Port States for the exchange of judicial inquiries and information regarding the exercise of jurisdiction under the EEZ regime should be studied. As mentioned in 7.3.2, it is obvious that for the legitimate institution of proceedings by Port States, an adequate legal basis relating thereto in accordance with their national legal system is required. Together with additional arrangements within the MOU-framework on the institution of proceedings as regards discharge violations, Port State enforcement in the North Sea area could thus be strengthened considerably.

Because there was a need for uniformity in executing the Port State Control procedures (inspection and detention), and in order to provide a clear legal basis for the actions under the MOU (being an administrative agreement), the European Commission elaborated the Directive 95/21/CE of 19 June 1995, which is regularly amended.

The European Port State Directive however provides no legal basis for the institution of proceedings by Port States. The Directive mainly aims at a more uniform execution of the MOU obligations, inter alia by listing (1) ships eligible for a priority inspection, (2) legitimate reasons for a detailed inspection (e.g. a notification report of another Maritime Authority), and (3) criteria for the detention of a ship. During the fifth Ministerial Conference on Port State Control in Copenhagen on 14 September 1994, the MOU was amended, so that the new MOU text closely fits the European Port State Directive.

As regards the prevention and control of crime, the Council of Europe⁽⁶⁾ has created several European Conventions in the field of Penal Law. The most relevant European Conventions on international legal assistance in criminal matters are discussed below.

The European Convention on Extradition of 13 December 1957 entered into force on 18 April 1960. It has been ratified and has entered into force in all North Sea States and EU Member States.

This Convention provides for the extradition⁽⁷⁾ between Parties of persons wanted for criminal proceedings or for the carrying out of a sentence or detention order. Extradition shall be granted in respect of offences punishable under the laws of both the requesting and the requested Party by deprivation of liberty, or under a detention order for a maximum period of at least one year, or by a more severe penalty. Any requested Party has the right to refuse extradition of its nationals.

With respect to violations of the MARPOL 73/78 discharge regulations in the EEZ of a European Coastal State, extradition will only be applied by way of exception, since extradition according to the Convention presupposes the threat of a custodial sentence for an individual suspect, whereas UNCLOS (Art. 73, § 3 and Art. 230, § 1) excludes imprisonment or any other form of corporal punishment as a form of penalty for such violations in the EEZ.

The same remark can also be made with respect to violations of the MARPOL 73/78 discharge regulations in the territorial sea of a Coastal State. However, in case of a wilful and serious act of pollution in the territorial sea, this restriction does not apply (see Art. 230, § 2).

All North Sea States and EU Member States are party to the European Convention on Mutual Assistance in criminal Matters of 20 April 1959 (entry into force: 12 June 1962).

Under this Convention, Parties agree to afford each other the widest measure of mutual assistance with a view to gathering evidence (audition of witnesses, experts and prosecuted persons, service of writs and records of judicial verdicts) or to communicate the evidence (records or documents) in criminal proceedings undertaken by the judicial authorities of the requesting Party. This legal assistance is provided for the purpose of investigations, prosecution and conviction in the requesting State.

The Convention also specifies the requirements that requests for mutual assistance and letters rogatory have to meet (transmitting authorities, languages, refusal of mutual assistance). It provides for instance that in case of urgency, letters rogatory may be addressed directly by the judicial authorities of the requesting Party to the judicial authorities of the requested Party. This direct transmission may take place through the International Criminal Police Organisation INTERPOL (see 7.6).

The Convention further provides for the laying of information by one Party with a view to proceedings in the courts of another Party. However, it does not imply an obligation for the latter Party to institute proceedings. This provision can be considered as the precursor or informal variant of the European Convention on the Transfer of Proceedings in Criminal Matters (see 7.5.3).

The European Convention on mutual assistance in criminal matters clearly affords greater scope. It can also serve as a basis for interpreting the provisions of UNCLOS concerning co-operation between Port State, Coastal State and Flag State in the field of providing legal assistance.

Only a few North Sea States and EU Member States (Denmark, The Netherlands, Norway, Sweden, Spain and Austria) [update 27.05.98] have ratified the European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972 (entry into force: 30 March 1978).

This Convention sets out rules and procedures for a Party to request another Party to take proceedings against a suspected person in its stead. The requested State shall have competence to prosecute under its own criminal law any offence to which the law of another Contracting State is applicable.

UNCLOS (see 7.3) also provides for the transfer of proceedings, on the minimum condition that the requested (Port or Flag) State, like the requesting (Coastal) State, has claimed jurisdiction in respect of the offence for which prosecution is being sought, regardless of where the offence was committed. It should be further examined whether the rules and procedures in the European Convention on the Transfer of Proceedings in Criminal Matters appear to provide a suitable basis for the transfer of proceedings against seagoing vessels flying a foreign flag.

Most of the aforementioned articles of UNCLOS deal with or presuppose international co-operation in criminal matters. On the other hand, the Council of Europe elaborated general Conventions on legal assistance in criminal matters, which can contribute to a regional co-operation regarding the implementation of the provisions of UNCLOS and the enforcement of the rules and standards of MARPOL 73/78.

However, it should be carefully examined to what extent the rules and procedures provided in these European Conventions do (or do not) meet the specific restrictions and conditions which UNCLOS imposes with respect to legal co-operation between Coastal State, Port State and Flag State in instituting proceedings against suspect ships (e.g. urgent requests from Coastal State to Port State to institute proceedings, or ways for a Port State to oblige a ship to provide financial security on behalf of another State, and transferring it that State).

The International Criminal Police Organisation INTERPOL (ICPO-INTERPOL) aims to ensure a co-ordinated international police co-operation between the police forces of INTERPOL Member States. It plays a vital role in supplying criminal information of a transnational nature to the national police forces. One of INTERPOL’s prime objectives is to ensure that INTERPOL Member States have a rapid, reliable, secure and permanently available electronic computer-to-computer mail service. In addition to the transmission of text messages, this mail system also enables law enforcement agencies to instantly transmit images, photographs, etc.

INTERPOL’s permanent departments constitute the General Secretariat (in the Headquarters in Lyon, France), whose close contacts with the INTERPOL National Contact Bureaux (NCBs) in the various member countries provide the framework for day-to-day international police co-operation. The Organisation - through the NCBs - provides logistic support in police co-operation and requests for legal assistance (e.g. letters rogatory in urgent cases, see 7.5.2). The NCBs can rapidly transmit requests for legal or police co-operation made by their own courts or police departments to the NCBs of other countries. The contacted NCB will ensure that the police actions or investigations requested by another country’s NCB are carried out on its territory. INTERPOL covers all types of criminal activity with international ramifications.

Close co-operation in combating environmental crime⁽⁸⁾ is also encouraged via the INTERPOL network. This means for instance that, with respect to a MARPOL 73/78 offender, request for police or judicial investigation of a suspect ship at the next port of call may be sent directly and rapidly from one law enforcement agency to another through INTERPOL.

Closer and direct police co-operation between several European Member States is also provided in the Convention from 19 June 1990 applying the Schengen Agreement of 14 June 1985. The EC Member States party to this Convention are Belgium, Federal Republic of Germany, France, Luxembourg, The Netherlands, Italy, Greece, Austria, Portugal and Spain.

In the context of art. 39, the Convention provides that States should ensure that their Police authorities shall, in compliance with national legislation and within the limits of their responsibilities, assist each other for the purposes of preventing and detecting criminal offences, insofar as national law does not stipulate that the request is to be made to the legal authorities and provided that the request or the implementation thereof does not involve the application of coercive measures by the requested State.