12 Pollution from ships
| (a)
(24535)
7312/03
—
(b)
(24480)
9008/03
—
|
Draft Directive on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences.
Draft Council Framework Decision to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.
|
| Legal base | (a) Article 80(2) EC; co-decision; QMV
(b) Article 34(2)(b) EU; consultation; unanimity
|
| Department | (a) Transport
(b) Home Office
|
| Basis of consideration | Minister's letter of 22 July 2003
|
| Previous Committee Report | HC 63-xxv (2002-03), paragraph 8 (18 June 2003)
|
| Discussed in Council | 9-10 October 2003
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
12.1 Following the sinking of the oil tanker Prestige off
the north-western coast of Spain in November 2002, the Commission
stated its intention to present a proposal to ensure that any
person who causes or contributes to a pollution incident through
grossly negligent behaviour is made subject to appropriate sanctions.
The Commission's proposal sought the more effective enforcement
of the International Convention for the Prevention of Pollution
from Ships 1973, and its Protocol of 1978 (generally known collectively
as MARPOL 73/78). This Convention, adopted by the International
Maritime Organisation, contains detailed rules and standards regulating
the discharge of waste and residues at sea.
12.2 The Commission argued that that there were a
number of legal, practical and political justifications for a
new Community measure in which rules relating to ship-source pollution
would be brought within the scope of Community law and their enforcement
regulated in detail.
12.3 The draft Directive relates to 'illegal discharges',
which are defined as those prohibited by MARPOL 73/78 involving
polluting substances within Annexes I and II of the Convention.
By virtue of Article 3, the Directive is to apply to discharges
in the internal waters, the territorial sea and the exclusive
economic zones of a Member State, to straits used for international
navigation and to the high seas. The Directive also provides
for criminal offences, and requires Member States to treat the
illegal discharge of polluting substances, or the participation
or instigation of such a discharge, as a criminal offence 'when
committed intentionally or by gross negligence'.
12.4 We noted that when the draft Directive was considered
at the Council's Transport working group on 9 and 15 April, a
number of Member States made the point that criminal sanctions
were an issue which should be addressed intergovernmentally under
the EU Treaty and not by means of a directive under the EC Treaty,
and that the Commission addressed this point by proposing a draft
Framework Decision for adoption under Article 34(2)(b) EU to supplement
the draft Directive.
12.5 We reviewed the terms of the draft Directive
and Framework Decision in detail and raised a number of issues.
We agreed with the Minister that it was not appropriate for a
measure proposed under the EC Treaty to impose criminal penalties.
In relation to subsidiarity we noted the Minister's comment that
shipping was an international business and that the implications
of Community-level action as opposed to action at national or
the wider international level needed careful consideration. We
asked the Minister if the concerns addressed in the Directive
might not be better addressed within the IMO.
12.6 We agreed with the specific concerns raised
by the Minister in relation to the draft Framework Decision.
We considered that Article 7 was capable of interfering with the
discretion of prosecuting authorities in the various parts of
the United Kingdom, and that the rules on jurisdiction in Article
8 seemed to marginalise the jurisdiction of the flag state. We
invited the Ministers to consider closely the extent to which
the proposals were consistent with the United Kingdom's obligations
under the 1982 United Nations Convention on the Law of the Sea,
notably in relation to the right of innocent passage, and with
the provisions of MARPOL 73/78.
The Ministers' reply
12.7 In his letter of 22 July the Parliamentary Under-Secretary
of State at the Department for Transport (Mr David Jamieson) replies
to our concerns on behalf of the Government, including in his
letter comments from the Foreign and Commonwealth Office and the
Home Office.
12.8 In relation to our concern over subsidiarity
and the view that the subject matter of the Directive might be
better addressed within the International Maritime Organisation
(IMO), the Minister states that he has 'no hesitation' in saying
that the regulation of international shipping is best carried
out within the IMO and that if states are not applying IMO instruments,
such as the MARPOL Convention, in an effective way this is an
issue which is best pursued within the IMO rather than on a regional
basis. Nevertheless, the Minister adds this further comment:
"However, the Commission's proposals for
a Directive and a Framework Decision have been taken up by a Presidency
and are currently under negotiation. In the circumstances, the
UK must work to ensure that these two pieces of European legislation
are developed in such a way as to be proportionate, effective
and consistent with international law."
12.9 In relation to Article 7 of the Framework Decision
(which we considered interfered with prosecution discretions by
requiring proceedings to be brought), the Minister comments that
the commencement of criminal proceedings is a matter falling within
the competency of Member States and should not be included in
this type of instrument. The Minister informs us that officials
will be seeking the deletion of these provisions.
12.10 In relation to Article 8 (which contains a
series of rules allocating jurisdiction which seemed to us to
marginalise the position of the flag state), the Minister comments
that the Government is unaware of any practical difficulties arising
between Member States in deciding where a prosecution should take
place and that it was unconvinced that these provisions were either
necessary or appropriate.
12.11 The Minister comments in detail on the extent
to which the proposals are consistent with the UK's obligations
under the 1982 United Nations Convention on the Law of the Sea
(UNCLOS) and with the provisions of MARPOL 73/78. First, the Minister
notes that we drew attention to the fact that the list of connecting
factors in Article 8(3) of the Framework Decision determining
which state is to have jurisdiction is not to be found in UNCLOS.
The Minister suggests that this need not give cause for concern,
explaining that under UNCLOS there will be occasions when two
or more States may have the right to assert jurisdiction and that
it 'makes sense in a close political grouping like the EU for
the members to decide among themselves the priority between them
in exercising jurisdiction'. The Minister adds that UNCLOS does
not appear to prohibit a pragmatic arrangement of this sort.
12.12 In relation to the effect of the proposals
on the right of innocent passage, the Minister points out that
under Article 19(2)(h) of UNCLOS passage is not innocent if the
ship is engaged in 'wilful and serious pollution' and that under
Article 21(1)(f) of UNCLOS the coastal state may adopt laws relating
to the prevention, reduction and control of pollution. The Minister
states that any European legislation must conform to the detailed
rules on jurisdiction over pollution contained in Part XII of
UNCLOS. He adds that Article 8(1) (which contains rules determining
which state is to have jurisdiction) refers to Member States acting
'in accordance with conventions or ...multilateral agreements'
and that Article 8(2) applies to proceedings being commenced 'validly'.
In the Minister's view 'both of these references seem to betoken
an intention to act only in accordance with international law,
including therefore UNCLOS'.
12.13 The Minister nevertheless refers to having
'strong concerns' about the draft Directive and Framework Decision
in relation both to UNCLOS and MARPOL. The Minister comments as
follows:
"As regards UNCLOS, we remain concerned
by the two measures' references to 'deprivation of liberty' and
'imprisonment'. Article 230 of UNCLOS only permits a state to
apply penalties other than monetary penalties to foreign vessels
if the offence was committed in the territorial sea and was a
wilful and serious act of pollution. Article 230 of UNCLOS prevents
a state from applying penalties other than monetary penalties
to foreign vessels which committed offences in the territorial
sea which were not a wilful and serious act of pollution, and
prevents a state from applying penalties other than monetary penalties
to foreign vessels which committed any offences beyond the territorial
sea — i.e. in the state's Exclusive Economic Zone or equivalent,
or on the high seas. We will work, in the coming negotiations,
to ensure that the final text of the European legislation properly
reflects UNCLOS.
"As regards MARPOL, we remain concerned
that the Directive deliberately goes further than the MARPOL requirements
in some places — notably in respect of the exceptions set
out in MARPOL Annex I, Regulation 11(b) and Annex II, Regulation
6(b). These exceptions[31]
are an integral part of MARPOL, but are explicitly disallowed
in the current texts of both European measures. This would raise
serious problems of compatibility with international law if applied
to ships in transit through the waters of the UK or other Member
States. We will be working, in the coming negotiations, to bring
the European measures strictly in line with MARPOL."
Conclusion
12.14 We thank the Minister for his comprehensive
and thorough replies to the points we have raised. We remain sceptical
of the value of these measures and agree with the Minister that
the subject-matter is better dealt with by the International Maritime
Organisation (IMO). In this regard, we are concerned that the
principal substantive effect of the measures, and quite possibly
their true purpose, is to confer exclusive external competence
on the Community in relation to IMO matters.
12.15 We fully support the Minister in his efforts
to ensure that these measures are in accordance with the provisions
of UNCLOS and the MARPOL Convention.
12.16 We have no further questions to put to the
Minister at this stage, but we shall look forward to an account,
in due course, of how the Government's concerns are being addressed
in a revised version of the proposals.
31 The exceptions relate to the discharge of oil or
noxious substances resulting from damage to the ship where all
reasonable precautions have been taken after the occurrence of
the damage to prevent or minimise the discharge. Back
| 
