Criminalisation Developments in EU, Canada and other locations
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Criminalisation
Developments in EU, Canada and other locations
INTERNATIONAL SALVAGE UNION
8 March 2006
Peter M. Swift
Spain rejects Mangouras appealPresentation to ISU 2004
Places of RefugePlaces of RefugeA Solution Waiting to be ImplementedA Solution Waiting to be Implemented Presentation to ISU 2004Presentation to ISU 2004
Erika II Package – December 2000Erika II Package – December 2000
Requires Each Member State to Draw up Requires Each Member State to Draw up Emergency Plans for Hosting Ships in Emergency Plans for Hosting Ships in Distress in Places of RefugeDistress in Places of Refuge
Port Reception FacilitiesPresentation to ISU 2004
An International Failure:- Inadequacy of Reception of Annex I wastes still an issue for Tanker Owners
- States turning to policing measures w/o first providing the solution (Mediterranean aerial surveillance, Baltic oil tagging) – must return to the source of the problem, not end of pipe solutions
A European Concern:Implementation of Directive not uniform – ports allowed to implement w/o direction from state leading to different interpretation of:
- Capability of ship to reach next port w/o need for discharging waste
- Fee systems increased beyond previous levels
- Over-regulation of facilities causing closures, e.g. Italy
Criminalisation
”Creeping”
Criminalisation is a
Concern for all in Shipping
Criminalisation
A two-fold concern:
Unfair treatment / human rights
and
Counterproductive nature of other measures
Criminalisation
Vision for Tanker Industry: to be recognised as ”responsible” and to be ”respected”
We have stated and stand by our ”Zero
Tolerance” for illegal acts We sympathise with the victims of shipping
accidents and support fully the provision of proper compensation
CriminalisationCriminal sanctions for ship-sourced pollution:
Industry objects to criminalising accidental pollution AND condemns illegal discharges
Need clarity in law AND consistency with international law
Penalties should be proportionate AND have parity with other similar offences (ashore)
Suspects must be treated fairly AND in accordance with basic human rights
States should comply with their obligations to provide reception facilities AND places of Refuge
Criminalisation
Unfair treatment and violation of human rights
Too many cases of unlawful detentions after shipping accidents
Welcome for the joint IMO/ILO Group on Fair Treatment of Seafarers
Too many other unjust practices – unjustified fines, denial of shore leave, prohibition of terminal access and more
CriminalisationCounterproductive consequences not recognised:
Destroys “no blame” cultures Discourages openness and frank reporting Curtails surveyors’ reports – detracts from ”good practice” Deters salvors in circumstances when we need them most Deflects focus for proper casualty investigation and denies
benefits of same Destroys and damages morale of seafarers and others Dissuades new recruits and accelerates departure of
experienced staff Drives responsible people and companies from the business
Is this what the legislators and society are seeking ?
Criminalisation
What is to be done ?
PLENTY !
CriminalisationWhat is being done ?
Controlling illegal discharges
Reception facilities: Industry-government forum (Industry, IMO and EMSA)
Industry Guidance on Use of Oily Water Separators and Completion of Oil Record Book
Preparing Guide for treatment of engine room wastes – including means to limit generation of waste, better management of waste, better design and sizing of equipment, (revisions to Marpol), and additional training
CriminalisationWhat is being done ?
Industry-wide efforts to:
Remove the threat of criminal sanctions for accidental discharges
& Maintain the Supremacy of International
Law
CriminalisationRemoval of the threat of criminal sanctions for accidental discharges
&Maintenance of Supremacy of international law
EU: Action in the High Court in London to test the validity of the 2005 EU Directive on Criminal Sanctions for Ship-Source Pollution and seeking a reference to the European Court of Justice – criminalises accidental pollution, conflicts with existing treaty law obligations under Marpol and UNCLOS, and fails to satisfy the principle of legal certainty
CANADA: Monitoring of Amendments to Migratory Birds and Environmental Protection Acts – conflicts with Marpol and UNCLOS obligations, and includes an assumption of guilt before trial for accidental pollution
Criminalisation
Conclusions: We are not perfect AND are not complacent Criminalisation concerns us all AND is NOT
THE SOLUTION Fair treatment (especially after an accident)
AND the detrimental consequences of criminal law MUST be spelled out clearly
This is NOT about confrontation – but about reality !
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