6 POLLUTION CAUSED BY SHIPS
(25956)
12537/04
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| Draft Council Framework Decision to strengthen the criminal law framework for the enforcement of the law against ship-source pollution
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| Legal base | Article 34(2)(b) EU; consultation; unanimity
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| Department | Home Office
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| Basis of consideration |
Minister's letter of 26 November 2004 |
| Previous Committee Reports
| HC 42-xxxv (2003-04), para 4 (3 November 2004); see also (24535) 7312/03 (25539) 8118/04: HC 42-xxvi (2003-04), para 3 (7 July 2004) and (24535) 7312/03 (25202) 16191/03 (25539) 8118/04: HC 42-xxii (2003-04), para 8 (9 June 2004)
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| Discussed in Council | 2-3 December 2004
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; information on progress requested
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Background
6.1 The object of these proposals is to secure 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 or the MARPOL Convention).
6.2 In their original form, the proposals consisted
only of a Directive. A number of Member States (including the
United Kingdom) were opposed to a measure under the EC Treaty
which imposed criminal penalties, since this was beyond the competence
of the Community. In response to this criticism, the Commission
produced a draft Framework Decision under the EU Treaty which
would serve to implement the draft Directive by making provision
for criminal penalties in respect of the acts defined in the Directive.
6.3 We cleared the text of the draft Directive from
scrutiny on 7 July, noting that in its amended form it was to
apply "in accordance with international law", and specifically
that it was to apply to the internal waters of a Member State,
including its ports, only in so far as the MARPOL regime applied
to those waters. We nevertheless noted that the draft Directive
contained a narrower form of the exception than that permitted
under MARPOL in the case of pollution resulting from damage to
a ship. The exception under the Directive would apply only in
international straits, the Exclusive Economic Zone and the high
seas, and would exempt only the owner, the master and the crew
(when acting under the master's instructions).
Our previous consideration of the draft Framework
Decision
6.4 We considered the draft Framework Decision on
a number of occasions, most recently on 3 November. We noted that
under Article 2(2) pollution from a ship was not to be made criminal
if done by "crew members, when not acting under the master's
responsibility, in respect of infringements that occur in straits
used for international navigation, exclusive economic zones and
on the high seas where the conditions set out in Annex I, Regulation
11(b) or in Annex II, Regulation 6(b), of MARPOL 73/78 are satisfied".
(Annex I to MARPOL deals with oil pollution. Regulation 11(b)
provides an exception from the general prohibition on discharges
of oil into the sea to cover cases where the discharge arises
from damage to a ship, provided that all reasonable precautions
are taken to prevent or minimise the discharge and provided the
owner or master does not intend to cause damage, or is reckless
as to whether such damage will result. Regulation 6(b) of Annex
II provides the like exception in relation to the discharge of
noxious liquid substances.)
6.5 The Minister explained that the amendments to
Article 2(2) had been secured by the UK in order to provide some
protection for the crew of a ship where they are not acting under
the master's responsibility and the discharge occurs in straits
used for international navigation, the high seas, or a Member
State's exclusive economic zone and the discharge was the result
of damage to the ship. We asked the Minister to explain
the concept of "not acting under the master's responsibility"
as used in Article 2(2), and how far the amendment reduced the
scope of the exception in Regulation 11(b) of Annex I to MARPOL.
6.6 We noted that Article 4(7) of the Framework Decision
provided that imprisonment for an offence might be imposed only
where this was permissible under international law, and in particular
under Article 230 of the UN Convention on the Law of the Sea (UNCLOS),
but that it was amplified by a further provision which stated
that, pursuant to Article 311 of UNCLOS, Member States did not
consider ships flying the flag of other Member States to be foreign
ships within the meaning of Article 230. This appeared to us
to have the effect that the protection against imprisonment for
the crew of a foreign vessel would not apply within the Member
States in the case of a vessel flying the flag of a Member State.
We asked the Minister to explain the effect of, and the justification
for, this further provision and whether it would lead to an increased
risk of imprisonment of British crews in other Member States in
relation to pollution incidents.
6.7 We noted that under Article 7 each Member State
was required to make rules "so far as may be permitted by
international law" to establish jurisdiction over offences
committed within its territory, its exclusive economic zone,
or on board a ship carrying its flag. In addition, Member States
were required to establish jurisdiction on more indirect grounds,
such as the case where the offence is committed outside its territory
but has resulted in "damages" within its territory and
the vessel is voluntarily within a port or at an offshore terminal
of the Member State, or where the offence is committed on the
high seas and the ship is voluntarily within a port or at an offshore
terminal of that Member State.
6.8 We also noted that in an addition to Article
7, Member States were required to establish jurisdiction where
the offence is committed in straits used for international navigation
subject to the regime for transit passage, as provided for in
Part III, section 2 of UNCLOS.[18]
The Minister explained that the provisions of Article 7 on jurisdiction
had not been finalised due to outstanding issues about whether
straits used for international navigation should fall within the
territory in question. The Minister informed us that the Presidency
had proposed a Council Declaration as a solution to this issue,
which the Government supported in theory. We asked the Minister
to make the text of this declaration available to us.
The Minister's reply
6.9 In her letter of 26 November 2004, the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) addresses
each of these concerns.
6.10 As for the use of the concept of "not acting
under the master's responsibility" in Article 2(2), the Minister
explains that this was introduced, at the request of the UK, in
order to provide some protection for crew members so that Member
States may choose to ensure that such crew members are not subject
to criminal sanctions where the discharge occurs in straits used
for international navigation, in a Member State's Exclusive Economic
Zone or on the high seas, and the discharge was the result of
damage to the ship.
6.11 The Minister adds that, in pressing for this
wording, the UK was reacting to the fact that the text of the
proposal restricts the exception in MARPOL relating to pollution
resulting from damage to a ship (i.e. Regulation 11(b) in Annex
I and Regulation 6(b) in Annex II) to the owner, the master and
"the crew when acting under the master's responsibility".
The Minister agrees with us that MARPOL does not include this
latter concept. The Minister further explains that the UK considered
it important to allow Member States to choose not to apply criminal
sanctions to members of the crew in circumstances where Regulation
11(b) applies, since these circumstances are ones in which MARPOL
and UNCLOS would not treat the crew as having committed offences
at all.
6.12 On the justification for the provisions of Article
4(7), the Minister explains that this makes explicit in the Framework
Decision a particular interpretation of UNCLOS to the effect that
an EU Member State would not consider a ship flying the flag of
another Member State to be a "foreign ship" within the
meaning of UNCLOS Article 230. The Minister adds that this is
an interpretation of UNCLOS Article 230 which the UK has accepted
before in the context of other European legislation. This being
the case, the Minister considers that the UK could not oppose
the provisions of Article 4(7). The Minister acknowledges that
the provision would have the effect of increasing the range of
circumstances in which the penalty of imprisonment could apply
to those responsible for a polluting discharge from a ship.
6.13 The Minister comments that the Government does
have concerns about whether British crews will be imprisoned in
other Member States. The Minister explains that it was for this
reason that the Government sought, throughout the negotiations,
to prevent the Framework Decision from requiring imprisonment
as a sanction. The Minister adds that the Government was unable
to secure this, due to the insistence by other Member States that
such language be included. The Government has sought to mitigate
the impact of this provision by, for example, securing the language
in Article 2(2) so that Member States may exclude the crew of
a ship from criminal sanctions. The Minister comments that it
is nevertheless a fact that, even without the Framework Decision,
Member States may still imprison for pollution offences under
their national law, subject to any relevant constraints of the
public international law of the sea.
6.14 In relation to straits used in international
navigation, the Minister informs us that the declaration proposed
by the Presidency is in these terms:
"This Framework Decision does not contain
an explicit obligation for Member States bordering straits used
for international navigation subject to regime for transit passage,
as laid down in Part III, section 2 of the 1982 United Nations
Convention on the Law of the Sea, to establish jurisdiction with
regard to offences committed in such straits. The jurisdiction
with regard to offences is to be established pursuant to Article
7 (1)(a) and (b) of the Framework Decision, in accordance with
international law and in particular Article 34 of the above mentioned
United Nations Convention."
6.15 The Minister explains that the Government accepts
this proposed form of words, considering that it accurately represents
the position of international straits, and is a reasonable compromise.
6.16 Finally, the Minister explains that the Framework
Decision was discussed at the November Justice and Home Affairs
Council where deep divisions remained on a number of key issues,
in particular those surrounding Article 4(7), and that it was
agreed that the text would be considered again at the December
Justice and Home Affairs Council.
Conclusion
6.17 We thank the Minister for her detailed and
helpful letter. We note the position in relation to the crew of
a ship where a discharge occurs resulting from damage to a ship
in circumstances covered by Regulation 11(b) of Annex I to the
MARPOL Convention. We accept that it is important that members
of a crew, who are otherwise complying with the MARPOL Regulations,
should be protected even when they might be regarded in the foreign
jurisdiction as acting on their own initiative and not under the
direction of the ship's master.
6.18 We also note the position as to the United
Kingdom's practice in relation to the treatment under Article
230 UNCLOS of a ship carrying the flag of another Member State,
and agree with the Minister's assessment that this makes it difficult
to oppose the provisions of Article 4(7) on this point.
6.19 We are grateful to the Minister for supplying
the text of the proposed declaration on international straits
which appears to us sufficiently to preserve the position established
under the United Nations Convention on the Law of the Sea.
6.20 We are conscious that, although progress
has been made on the Framework Decision, it is still contingent
on a satisfactory outcome to negotiations on the draft Directive,
notably with the European Parliament. We shall therefore hold
the document under scrutiny pending further information from the
Minister on negotiations on these two related instruments.
18 By virtue of Articles 37 to 44 UNCLOS a right of
transit passage may be exercised by vessels for the purpose of
"continuous and expeditious transit of the strait between
one part of the high seas or an exclusive economic zone and another
part of the high seas or an exclusive economic zone". By
virtue of Article 39, ships in transit passage are required to
comply with generally accepted international regulations, procedures
and practices for the prevention, reduction and control of pollution
from ships. Back
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