Investigating Shipping Pollution Violations

1. Investigating Shipping Pollution Violations Pacific Module 16: Other Enforcement Options

2. Aim ● Identify other options where domestic enforcement is not viable • Assistance in collection of evidence • Other enforcement actions

3. MARPOL Article 6 MARPOL text • Article 6.1 • Parties cooperate in detection of violations and enforcement of the provisions of MARPOL ..detection and monitoring …reporting and accumulation of evidence • Article 6.3 • Any Party shall furnish to an Administration evidence of a violation (6.3)

4. MARPOL Article 6 MARPOL text • Article 6.4 • The Administration informed shall investigate the matter and, if satisfied there is sufficient evidence available, cause legal proceedings taken in accordance with its laws as soon as possible • Article 6.5 • A Party may request an Administration to undertake an investigation on its behalf and the report shall be sent to the requesting Party so that appropriate action can be undertaken

5. Practical Use of MARPOL Article 6 Evidence collection • Cooperation with other Parties to MARPOL • Notify other jurisdiction if violation has been detected • Request another Administration to collect evidence on your behalf (be specific - take samples, copy documentation (or other) from vessel for the purpose of an investigation of a violation committed in another jurisdiction (ie consider using this option if vessel has left your jurisdiction or has polluted while transiting your EEZ) • Need to have secure arrangement for the integrity and transport of the evidence • Requesting Party retains evidence and any legal proceedings are undertaken within jurisdiction of that Party

6. Practical use of MARPOL Article 6 Investigation assistance • Request the Administration in the next port of call to undertake an investigation on your country’s behalf • Provide specific instructions of what is required • Possibly joint investigation with officers from the polluted jurisdiction joining those at the next port of call • Check domestic laws in order to verify admissibility of any evidence collected (eg. authorised officers used under the laws of that jurisdiction) • Requesting Party retains evidence and legal proceedings undertaken within jurisdiction of that Party

7. Referral to Flag State • Flag State Administration is requested to investigate • All evidence sent to the Flag State • provide justification of clear grounds that a violation has occurred (useful to prepare a report similar to a Brief of Evidence) • Flag State obligated to investigate the matter • if sufficient evidence take appropriate action under its laws as soon as possible • Inform the requesting Party of the outcome of the investigation • MARPOL Party reports to IMO GISIS and lists referrals to Flag State (includes whether there has been a response)

8. Referral to Flag State: Risks • Flag State Administration may not be responsive to the investigative referral • Flag State laws may have lower sanctions (i.e. does not provide adequate deterrence) • Requesting Party does not have control of the investigation

9. Port State Control Inspections • Report pollution incident to PSC MOU • Coastal or Port State may undertake a PSC Inspection • Inspection effective only if deficiencies are detected that relate to the pollution incident and detention action is warranted • Detention may have a more significant financial impact than a fine imposed through legal proceedings

10. Information or Evidence from a Foreign Country • Where an investigation requires information or evidence from a foreign country, it may be obtained: • Formally - Mutual Legal Assistance treaties (MLAT via your country’s Attorney General Department, Department of Justice, or other) • Informally – Police to police or investigative agency to investigative agency

11. Mutual Assistance from a Foreign Country • Mutual Assistance is the process used to provide and obtain formal government to government assistance in order to facilitate criminal investigations and prosecutions • Country may require a formal mutual assistance request. Examples of use: • Coercive powers such as a search warrant (obtain evidence such as financial records) • Taking evidence from a witness for a foreign court proceedings (voluntary or cautioned statements)

12. Letters Rogatory • Letters rogatory are a customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement • Execution of letters rogatory may take a year or more worldwide • transmitted via diplomatic channels

13. INTERPOL Assistance • INTERPOL may be available to facilitate a request for referral through National Central Bureau (Police) network • INTERPOL may be able to assist in collection of evidence, taking of statements, provision of information, locating persons etc • INTERPOL Notices

14. INTERPOL Sharing of Information and Intelligence • Environmental Crimes Committee • Project Clean Seas • Worst Offenders database • Ship Pollution Prosecutions database • Sharing information may assist another jurisdiction in an active investigation

15. Questions?