FACULTY OF LAW

DEPARTMENT OF PUBLIC INTERNATIONAL LAW Academic year: 2011 – 2012

OIL SPILL DETECTION BY REMOTE SENSING A COMPARATIVE LEGAL ANALYSIS

In fulfillment of the requirements for the degree of: ‘MASTER OF LAW’

Submitted by:

EWOUD HACKE

No. 00702542

Supervisors: Prof. Dr. Frank Maes Hendrik Schoukens

FACULTY OF LAW

DEPARTMENT OF PUBLIC INTERNATIONAL LAW Academic year: 2011 – 2012

OIL SPILL DETECTION BY REMOTE SENSING A COMPARATIVE LEGAL ANALYSIS

In fulfillment of the requirements for the degree of: ‘MASTER OF LAW’

Submitted by:

EWOUD HACKE

No. 00702542

Supervisors: Prof. Dr. Frank Maes Hendrik Schoukens

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Preface This thesis would not have been made without the help and support of many. I would therefore like to extend my gratitude to all those who made it possible. I would like to sincerely thank prof. dr. Frank Maes in the first place, for being my supervisor, my teacher, and my mentor for the past two years. Without his help, this work would never have been realized. I would also like to thank Mr. Hendrik Schoukens for his help and reviews on such short notices. It has been a privilege to work with such a dedicated team. A special thanks goes out to the people who supported and aided me during the process: prof. dr. Philip Traest and Mr. René Oosterlinck. A very special thanks goes out to Mr. Stuart Thorp for reviewing my thesis despite his busy schedule. Thank you very much for your indispensable help. A very, very special thanks goes out to Ruben Verborgh, my brother-in-law, for reviewing my thesis and for all those crucial comments. But I would also like to thank him for being my example in life and giving me inspiration and courage to perform better every day. My profound thanks goes out to my parents and grandparents for giving me the enormous opportunity of studying law school and for their unconditional support, every single day, no matter what. Thank you so much for being there for me. This is the same for my only, but best sister in the world. Her support and confidence in my work keeps me going, day after day. Thank you all for lighting up my life. I would also like to thank my friends for their continuous support throughout these past five years. Without their patience, support and enthusiasm, these five years would have never been the same. And last, but not least, I would like to thank my girlfriend, my best friend and soulmate. This would never have been possible without your constant support, patience and love. Thank you for always being there for me.

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Content List of Abbreviations ix Table of Treaties and Other Legislation xiii List of tables, figures and images xvii Introduction xix

CHAPTER 1. IMPORTANCE OF OIL POLLUTION ENFORCEMENT 1

1.1 Effects and consequences 1

1.2 Sources of oil pollution 2 1.2.1 Natural seepage 2 1.2.2 Land-based oil pollution 3

1.2.2.1. Urban runoff and discharges 3 1.2.2.2. Atmospheric deposition 3 1.2.2.3. Coastal facility spills 4

1.2.3 Sea-based oil pollution 4 1.2.3.1. Vessel-source pollution 4 1.2.3.2. Offshore Petroleum Extraction 6

1.2.4 Total amount of oil pollution: a comparison 7

1.3 Types of oil pollution 9 1.3.1 Accidental oil pollution 9 1.3.2 Operational oil pollution 9

1.4 MARPOL Enforcement statistics 10

CHAPTER 2. REMOTE SENSING TO DETECT ILLEGAL DISCHARGES 13

2.1 A historical introduction 13

2.2 Types of satellites used to detect oil discharges 14

2.3 Current state of remote sensing technologies 16 2.3.1 Synthetic Aperture Radar (SAR) 17 2.3.2 Side-Looking Airborne Radar (SLAR) 18 2.3.3 Infrared and Ultraviolet Scanner (IR/UV) 19 2.3.4 Microwave Radiometer (MWR) 20 2.3.5 Laser Fluorescence Sensor (LFS) 20 2.3.6 Human Visual Inspections 21 2.3.7 Remote sensing process 21

2.4 International legal implications of satellite remote sensing activities 21 2.4.1 Definition and problem setting 21

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2.4.2 Legal Framework 23 2.4.2.1. Multilateral instruments 23 2.4.2.2. Bilateral instruments 26 2.4.2.3. Conclusion 27

2.5 Automatic Identification System 28

CHAPTER 3. INTERNATIONAL LEGAL FRAMEWORK FOR ILLEGAL OPERATIONAL OIL SPILL PREVENTION AND DETECTION 31

3.1 From Washington to Rio: 86 years of legal environmental protection 31

3.2 International instruments 34 3.2.1 MARPOL 34

3.2.1.1. Scope of MARPOL 35 3.2.1.2. Annex I: Prevention of Pollution by Oil 36

A. Port reception facilities 36 B. Technical construction standards 36 C. The Oil Record Book 38 D. Discharge limitations and special areas 38 E. Circumventions and motives 40

3.2.1.3. Annexes II-VI 40 3.2.1.4. Certificates 41 3.2.1.5. Enforcement 42

A. Flag States 42 B. Port States 42 C. Coastal states 43

3.2.2 UNCLOS 43 3.2.2.1. Flag States 44 3.2.2.2. Port States 45 3.2.2.3. Coastal States 45

3.2.3 SOLAS Convention 47

3.3 Regional instruments 47 3.3.1 EU 48 3.3.2 Bonn Agreement 50 3.3.3 OSPAR Convention 53

3.4 The United States counter oil pollution framework 54

3.5 Conclusion 55

CHAPTER 4. SATELLITE REMOTE SENSING EVIDENCE IN CRIMINAL PROCEEDINGS 57

4.1 European initiatives to enhance cooperation in criminal proceedings 58

4.2 Initial national enforcement procedures 60 4.2.1 Belgium 60 4.2.2 France 61

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4.2.3 The Netherlands 62 4.2.4 The United Kingdom 62 4.2.5 United States 63 4.2.6 Enforcement framework overview 64

4.3 Transfer of criminal proceedings 68

4.4 National evidence admissibility standards 72 4.4.1 Remote sensing data in international legal proceedings 72 4.4.2 Belgium 73

4.4.2.1. General rules on evidence admissibility in criminal proceedings 73 4.4.2.2. Specific rules on oil pollution evidence in criminal proceedings 74 4.4.2.3. Conclusion 75

4.4.3 France 75 4.4.3.1. General rules on evidence admissibility in criminal proceedings 75 4.4.3.2. Specific rules on oil pollution evidence in criminal proceedings 75 4.4.3.3. Conclusion 76

4.4.4 The Netherlands 76 4.4.4.1. General rules on evidence admissibility in criminal proceedings 76 4.4.4.2. Specific rules on oil pollution evidence in criminal proceedings 77 4.4.4.3. Conclusion 77

4.4.5 The United Kingdom 77 4.4.5.1. General rules on evidence admissibility in criminal proceedings 77 4.4.5.2. Specific rules on oil pollution evidence in criminal proceedings 78 4.4.5.3. Conclusion 78

4.4.6 United States 78 4.4.6.1. General rules on evidence admissibility in criminal proceedings 78 4.4.6.2. Conclusion 80

4.5 Conclusion 80 Conclusion 81 Bibliography 83 Nederlandstalige samenvatting 91

 

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List of Abbreviations This is a complete list of all abbreviations used in the text and in the footnotes. Abbreviations of legislation can be found in the Table of Treaties and Other Legislation below. AIS Automatic Identification System ASAR Advanced Synthetic Aperture Radar BAAP Bonn Agreement Action Plan BS Belgisch Staatsblad CBT Clean Ballast Tanks CEPCO Coordinated Extended Pollution Control Operations CGIS Coast Guard Investigative Service, United States CIC Code d’Instruction Criminelle, Belgium CNES Centre National d’Études Spatiales, France CPP Code de Procédure pénale CPPP Commission for the Protection of the Personal Privacy, Belgium CRISP Center for Remote Imaging, Sensing and Processing, Singapore CONAE National Commission on Space Activities, Argentina COW Crude Oil Washing CSA Canadian Space Agency ECHR European Convention on Human Rights ECJ European Court of Justice EEZ Exclusive Economic Zone EGEMP European Group of Experts on Satellite Monitoring of Sea- based Oil Pollution EMSA European Maritime Safety Agency ENVISAT Environmental Satellite EOS Earth Observation System EPA Environmental Protection Agency, United States EPZ Ecological Protection Zone, France ERS European Resource Sensing ESA European Space Agency ETS European Treaty Series EU European Union FMA French Maritime Administration FT Forepeak Tanks GESAMP Group of Experts on Scientific Aspects of Marine Pollution GMES Global Monitoring for Environment and Security GPA Global Program of Action for the Protection of the Marine

Environment from Land-based Activities GT Gross Tonnage HR House of Representatives bill, United States HR Hoge Raad, the Netherlands IAEA International Atomic Energy Agency

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ICJ International Court of Justice ICPO-INTERPOL International Criminal Police Organization INTERPOL IFREMER French Research Institute for Exploration of the Sea IGS Inert Gas System ILA International Law Association ILM International Legal Materials IMO International Maritime Organization INSC International North Sea Conferences IOPPC International Oil Pollution Prevention Certificate IPR Intellectual Property Rights IR/UV Infrared and Ultraviolet Scanner ISM Code International Safety Management Code JO Journal Officiel, France JRC Joint Research Centre KSAT Kongsberg Satellite Service LANDSAT Land Remote-Sensing Satellite System LFS Laser Fluorescence Sensor LOSC United Nations Law of the Sea Convention, 1982 LOT Load On Top MCA Maritime and Coastguard Agency, United Kingdom MCGA Maritime and Coastguard Agency, the United Kingdom MEA Multilateral Environmental Agreements MEPC Marine Environment Protection Committee, International Maritime

Organization MoU Memorandum of Understanding MSC Maritime Safety Committee, International Maritime Organization MWR Microwave Radiometer MUMM Management Unit of the North Sea Mathematical Models, Belgium NAS National Academy of Sciences NASA National Aeronautics and Space Administration NGO Non-Governmental Organization NIR New Inspection Regime, Paris Memorandum of Understanding NJ Nederlandse Jurisprudentie, the Netherlands NM Nautical Miles NPCA Norwegian Pollution Control Authority NRC National Research Council NSD North Sea Directorate, the Netherlands NSN North Sea Network of Investigators and Prosecutors NUS National University of Singapore OJ.L. Official Journal Legislation, European Union OOSA Office for Outer Space Affairs OTSOPA Working Group on Operational, Technical and Scientific Questions

concerning Counter Pollution Activities PAH Polycyclic Aromatic Hydrocarbon PL Public Law POP Persistent Organic Pollutant ppm Parts Per Million PSC Port State Control PSSA Particularly Sensitive Sea Areas RADARSAT Radar Satellite

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SAR Synthetic Aperture Radar SBT Separated Ballast Tanks SEOS Science Education through Earth Observation for High Schools SLAR Side-Looking Airborne Radar SMS Safety Management System SOPEP Shipboard Oil Pollution Emergency Plan SPOT Système Pour l’Observation de la Terre Stat. United States Statutes at Large Stb. Staatsblad van het Koninkrijk der Nederlanden TIAS Treaties and Other International Acts Series TdH Tour d’Horizon flights UKTS United Kingdom Treaty Series UN United Nations UNCHE United Nations Conference on the Human Environment, Stockholm

1972. UNCOPUOS United Nations Committee on the Peaceful Uses of Outer Space UNCTAD United Nations Conference on Trade and Development UNEP United Nations Environmental Program UNISPACE United Nations Conference on the Exploration and Peaceful Uses of

Outer Space UN-SPIDER United Nations Platform for Space-based Information for Disaster

Management and Emergency Response UNTS United Nations Treaty Series USC United States Code USSR Union of Soviet Socialist Republics UST United States Treaties VOC Volatile Organic Compounds VTS Vessel Traffic Services W.Sv. Wetboek van strafvordering, the Netherlands YbIEL Yearbook of International Environmental Law

 

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Table of Treaties and Other Legislation This is a complete list of all treaties and other legislation used in this thesis. All treaties and other legislation are also fully repeated in the footnotes when they are mentioned for the first time. The second time an abbreviation will be used, indicated in this list with bold characters. ‘Not in force’ indicates that the treaty had not come into force by 15 May 2012. Almost all of these treaties and other instruments are readily accessible on the Internet. 1944 Convention on Civil Aviation, adopted on 7 December 1944 (Chicago Convention) (Chicago) 295 UNTS 15 (1994). In force 4 April 1947 … 25.

1948 Convention on the International Maritime Organization (CIMO) (Geneva) 289 UNTS 48; UKTS 54 (1950) Cmnd. 589; 53 AJIL (1948) 516. In force 17 March 1958.

1954 International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) (London) 327 UNTS 3; UKTS 54 (1958) Cmnd. 595; 12 UST 2989, TIAS 4900. In force 26 July 1958. Amended in 1962 and 1969 … 35, 36.

1958 Convention on the High Seas, adopted on 29 April 1958 (CHS) (Geneva) 450 UNTS 82; UKTS 5 (1963) Cmnd. 1929; 13 UST 2312, TIAS 5200. In force 30 September 1962 … 6, 35.

1959 European Convention on Mutual Assistance in Criminal Matters, adopted on 20 April 1959 (ECMACM) (Strasbourg) UKTS 24 (1992) Cm. 1928. In force 12 June 1962.

1963 United States Clean Air Act, adopted on 17 December 1963 (CAA) (Washington) 77 Stat. 391 (1970); 42 USC Sec. 7401-7671q. In force 17 December 1963 … 8.

1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, adopted on 27 January 1967 (Outer Space Treaty) (London, Moscow and Washington) 610 UNTS 205. In force 10 October 1967 … 25, 26, 27, 30.

1969 Agreement for cooperation in dealing with pollution of the North Sea by oil, adopted on 9 June 1969 (Bonn) 9 ILM 359 (1970). In force 9 August 1969.

1972 European Convention on the Transfer of Proceedings in Criminal Matters (TPCM) (Strasbourg) 16 ETS 1973. In force 30 March 1978.

United States Federal Water Pollution Control Act, adopted on 18 October 1972 (CWA) (Washington) 86 Stat. 816 (1972) P.L. 92-500. In force 18 October 1972.

Convention on the International Regulations for Preventing Collisions at Sea, adopted on 20 October 1972 (COLREG) UKTS 68 (1984) Cmnd. 9340. In force 1 June 1983 … 6.

1973 International Convention for the Prevention of Pollution by Ships, adopted on 3 November 1973 (MARPOL) (London) UKTS 27 (1983) Cmnd. 8924; 12 ILM (1973) 1319. Amended by Protocol of 1978 (q.v.) before entry into force.

1974 International Convention for the Safety of Life at Sea, adopted on 1 November 1974 (SOLAS) 1184 UNTS 2; UKTS 46 (1980) Cmnd. 7874. In force 25 May 1980, as subsequently amended … 31, 36, 37.

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United States Deepwater Port Act, adopted 1974 (Washington) 88 Stat. 2131 (1975) P.L. 93-627. In force 3 January 1975.

1975 United States Act to establish rules of evidence for certain courts and proceedings, adopted on 2 January 1975 (FRE) (Washington) PL 93-549, HR 5463. In force 2 January 1975.

1978 Protocol Relating to the Convention for the Prevention of Pollution from Ships, adopted on 17 February 1978 (MARPOL) 17 ILM (1978) 546. In force 2 October 1983. Annexes I-VI in force. Current texts in IMO, MARPOL Consolidated Edition … 1, 12, 34, 36, 37.

1980 United States Act to Prevent Pollution from Ships, adopted on 21 October 1980 (APPS) (Washington) PL 96-478, 33 USC §1901-1915. In force 21 October 1980 as subsequently amended.

1982 The Paris Memorandum of Understanding on Port State Control, adopted on 26 January 1982 (Paris MoU) (Paris) 21 ILM (1982). In Force 1 July 1982 … 7.

United Nations Convention on the Law of the Sea III, adopted on 10 December 1982 (UNCLOS) (Montego Bay) Misc. 11 (1983) Cmnd. 8941; 21 ILM (1982) 1261. In force 16 November 1994 … x, 34, 36, 39.

1983 Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances, adopted on 13 September 1983 (Bonn Agreement) (Bonn) International Environmental Law – Multilateral Treaties 983, 68/10. In force 1 September 1989 … 23, 34.

Ship Pollution Prevention Law, adopted on 14 December 1983 (SPPL) (Amsterdam) Stb. 1986, 191. In force 15 April 1986.

1990 Convention Implementing the Schengen Agreement of 14 June 1985 between the governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, adopted on 19 June 1990 (1990 Convention) (Schengen) OJ.L. 22 September 1990, ed. 239, 19. In force 1 September 1993.

United Sates Oil Pollution Prevention Act, adopted 18 August 1990 (OPA) (Washington) PL 101-380, 101 HR 1465, 33 USC §2701 et seq. In force 18 August 1990.

1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) (Paris) 3 YbIEL (1992) 759; 32 ILM (1993) 1072. In force 25 March 1998.

Belgian Law concerning the protection of the personal privacy with regard to the processing of personal information, adopted on 8 December 1992 (Law on Privacy) (Brussels) BS 18 March 1993. In force 28 March 1993, as subsequently amended.

1995 Belgian Law concerning the prevention of pollution by vessels, adopted on 6 April 1995 (SPPA) (Brussels) BS 27 June 1995, 18246. In force 7 July 1995.

EU Council Directive No. 95/21/EC, 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control) (Directive 95/21/EC) OJ.L. 7 July 1995, ed. 157, 1. In force 28 July 1995.

1998 EU Council Decision No. 98/392/EC, 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof (Council Decision 98/392/EC) OJ.L. 23 June 1998, ed. 179, 1. In force 23 June 1998.

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1999 Belgian Law concerning the protection of the marine environment in sea areas under the jurisdiction of the Kingdom of Belgium, adopted on 20 January 1999 (MEPA) (Brussels) BS 12 March 1999, 08033. In force 22 March 1999.

2000 EU Council Act establishing in accordance with Article 34 of the Treaty of the European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, adopted on 29 May 2000 (2000 Convention) (Brussels) OJ.L. 17 July 2000, ed. 197, 01. Entry into force dependable on the adoption date of EU member states.

French Ordonnance No. 2000-914 relative à la partie Législative du code de l’evironnement, adopted on 18 September 2000 (Code de l’Environment) (Paris) JO 21 September 2000. In force 2 July 2003.

United States Amended Act to Prevent Pollution from Ships, adopted on 29 December 2000 (APPS) (Washington) PL 106-580, 33 USC §§1905-1915. In force 29 December 2000.

2002 EU Regulation of the European Parliament and of the Council (EC) No. 1406/2002, 27 June 2002 establishing a European Maritime Safety Agency (Regulation 1406/2002) OJ.L. 5 August 2002, ed. 208, 1. In force 26 August 2002.

EU Directive of the European Parliament and of the Council No. 2002/59/EC, 27 June 2002 establishing a community vessel traffic monitoring and information system and repealing Council Directive No. 93/75/EEC (Directive 2002/59/EC) OJ.L. 5 August 2002, ed. 208, 10. In force 5 August 2002.

2004 IMO Convention for the Control and Management of Ships’ Ballast Water and Sediments, adopted on 13 February 2004 (London). Not in force.

2005 EU Council Framework Decision No. 2005/667/JHA, 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution (Framework Decision 2005/667/JHA) OJ.L. 30 September 2005, ed. 255, 164. In force 1 October 2005.

EU Directive of the European Parliament and of the Council No. 2005/35/EC, 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (Directive 2005/35/EC) OJ.L. 30 September 2005, ed. 255, 11. In force 1 October 2005 … 17.

2009 EU Directive of the European Parliament and of the Council No. 2009/16/EC, 23 April 2009 on port State control, OJ.L. 28 May 2009, ed. 131, 57. In force 17 June 2009.

 

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List of tables, figures and images This is a complete list of all tables, figures and images used in the text with a reference to the title and the page number. The names used for the images in the list below are not repeated in the text. Instead, each image is indicated with a bold number. Tables

1. Average annual releases of petroleum by source 8 2. Annual operational oil outflow by source 11 3. MARPOL, Annex I discharge limitations for oil and oily mixtures 39 4. Enforcement by flag state 65 5. Enforcement by coastal state 66 6. Enforcement by port state 67 7. Port state Prosecution & Transfer 69 8. Coastal state Prosecution & Transfer 70 9. Flag state Prosecution & Transfer 71 Figures

1. International seaborne trade 2007-2011 5 2. 1983 (annual release of petroleum) 8 3. 2003 (annual release of petroleum) 8 4. Annual operational oil outflow by source 11 Images

1. ENVISAT last radar image of Spain’s Canary Islands 15 2. SAR oil slick satellite image 17 3. SAR functioning visualisation phase 1 18 4. SAR functioning visualisation phase 2 18 5. Interior view of a remote sensing airplane 19 6. Ultraviolet oil slick satellite image 19 7. Infrared oil slick satellite image 19 8. Microwave radiometer oil slick satellite image 20 9. Laser fluorescence sensor oil slick satellite image 20 10. Automatic Identification System image of a polluting vessel 29 11. MARPOL Double hull and double bottom visualisation 37 12. Bonn Agreement zones of responsability 50 13. OSPAR Commission, NSN, Bonn Agreement framework organigram 53 14. 1996 Song San case SAR image, taken by ERS-2 72  

 

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Introduction Oil has been around for thousands of years. In 450 BC, Herodotus described the existence and use of oil pits at Ardericca, near Babylon. The oily substance was used in bricks and material to make boats waterproof, but not on a very large scale.1 It was until August 1859, when Colonel Drake drilled a well in Titusville, Pennsylvania and discovered oil, that petroleum changed the world.2 Following this discovery and many more throughout the United States, the demand for fossil fuel increased yearly – and globally. Today, oil is at the center of our economy and daily lives. It is raw material used in countless applications, from the fuel of gigantic ocean liners to the tiniest parts of electrical devices. The wide variety of applications is translated in massive oil consumption. In 1985, global oil consumption reached 2.8 billion tons/year.3 In 2010, consumption reached a record level of 87.4 million barrels/day or 4 billion tons/year.4 This was an increase of 3.1% compared to 2009 and 30% compared to 1985.5 Because the use of oil is so intense, production and transport increases, extending the risk of accidental spillage and endangering the marine environment. The many oil spill accidents in the past decades as a consequence of our massive oil consumption have raised global awareness. Following every accident, questions are raised on how the international community should react. In recent history international, regional, and national legislation has imposed technical construction and operational norms and standards to enhance marine ecological safety. However, accidents are not the only problem. Operational discharges of oily mixtures and bilge waters by vessels pose an equal threat to our aquatic environment. Although international rules introduced norms and standards in this area as well, illegal operational discharges remain common. In order to reduce the amount of illegal discharges, governments organize sea and air patrols to monitor marine areas. In addition to sea patrols, a new monitoring tool was introduced during the last decade through the technique of remote sensing. Remote sensing data, commonly known as satellite pictures, are a way to retrieve valuable data about objects and processes from the Earth’s surface. Although remote sensing is already around for over 50 years and is a considerable enhancement to the ability of governments to patrol the seas, this technique still presents a lot of difficulties. Used intensively by the military during the Cold War, the scope of remote sensing applications has extended far beyond its original purpose.6 Today, applications range from ordinary phone calls to highly sophisticated research projects. However, the use of remote sensing in criminal proceedings is a highly debated issue and there is no general clear-cut answer. Every country has its own rules and standards regarding evidence and its value. On the one hand, this hinders effective prosecution of offenders in certain countries because of a high evidentiary burden. On the other hand, this prevents an effective exchange of information between flag states, coastal states and port states when it comes to initiating criminal proceedings. In one state, a satellite image linked with Automatic Identification System (AIS) radar data is enough to judge offenders, but in other states more evidence, such as

                                                                                                               1 C. HUGH (ED.), “Petroleum”, Encyclopedia Britannica 1911, Vol. 21, 321. 2 NATIONAL RESEARCH COUNCIL (NRC), Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 7. 3 GROUP OF EXPERTS ON THE SCIENTIFIC ASPECTS OF MARINE POLLUTION (GESAMP), The State of the Marine Environment, Rep. Stud. No. 39, UNEP, 1990, 20. 4 1 tonne equals ≈7 barrels. 5 BP GLOBAL, Statistical Review of World Energy, June 2011, bp.com/statisticalreview. 6 R.A. MCDONALD, Opening the Cold War sky to the public: Declassifying satellite reconnaissance imagery, PE&RS 1995, Vol. 61, No. 4, 385-390.

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witness reports or photographs, is needed.7 This is especially problematic given that flag states can pull back proceedings at any given time, opening the possibility to reject the claim on the basis of insufficient evidence.8 These differences in standards form a serious legal problem, preventing many vessels from being brought before court and causing a sense of impunity. Motivated by the presumption that international regulations are the best option to tackle this problem, the essential research question of this thesis is therefore:

Is there a need for international standards relating to the admission of remote sensing data as evidence in criminal proceedings and if so, how will these international standards fit in the current international, regional or national legal framework?

In order to answer this question, five countries will be assessed: Belgium, France, the Netherlands, the United Kingdom, and the United States. This assessment will consist of two major parts. The first part consists of Chapters 1 and 2 and will give an introduction on the necessity of an effective oil pollution framework and an effective method of achieving this goal, namely satellite imaging. This is supported with scientific studies and datasets to illustrate this important problem. Part two of this assessment consists of Chapters 3 and 4 and gives an overview of the legal instruments to prevent, detect and prosecute illegal oil pollution. In Chapter 3, a clear overview will be given on the international, regional and national instruments for the prevention of oil pollution in force today. This includes an introduction to the MARPOL, UNCLOS and SOLAS conventions, followed by the EU and Bonn Agreement framework. To conclude, the counter oil pollution framework applicable in the United States will be explained. Chapter 4 will analyze the methods and procedures applied by the five countries to implement the international obligations summarized in Chapter 3. This includes procedures to inspect vessels and collect the necessary evidence, and focuses on the national admissibility standards for satellite remote sensing. In addition, the different procedures for the transfer of criminal proceedings will be visualized. This will allow to target possible obstacles and to assess the feasibility of international rules to introduce standards for the admission of satellite images in national criminal proceedings. Before commencing this assessment, it is important to frame the general problem of marine oil pollution, its sources, and current development together with relevant pollution data. Following this introduction, the current state of remote sensing technology will be discussed, especially the techniques used to support the application of environmental agreements.

                                                                                                               7 See for more information on AIS Section 2.6. 8 Art. 228 UN Convention on the Law of the Sea, adopted on 10 December 1982 (Montego Bay) Misc. 11 (1983) Cmnd. 8941; 21 ILM (1982) 1261. In force 16 November 1994.

1

Chapter 1. Importance of oil pollution enforcement Petroleum pollution input into marine environments is decreasing due to the introduction of international instruments and technical safety standards. However, if sea-based operational discharges would fully meet the current MARPOL discharge standards, there would be a 93% drop of marine oil input.9 This clearly shows that the main problem regarding illegal operational discharges is not caused by a lack of regulations, but by a lack of efficient and thorough enforcement by flag states, coastal states and port states. This Chapter will provide a brief overview of the effects, sources, and types of oil pollution followed by enforcement statistics. These Sections are supported by datasets and figures from research institutions and programs, which will offer a scientific introduction to the actual legal problem. 1.1 Effects and consequences Oil has disastrous effects on the environment when released into marine ecosystems. When hydrocarbon substances leak into the ocean, most of it floats onto the surface, causing a chain of negative effects.10 Fish are attracted to oil because they mistakenly see the thick oil layer as food. This in turn endangers seabirds, seals and, other marine mammals. Upon noticing the large amount of fish near oil spills, they try to catch the fish through the oil. Dolphins and seals have been reported feeding in and near oil spills. The results are well known: sea animals coated with oil, causing critical problems such as hypothermia in seagulls because of a reduction or even destruction of the insulation and waterproofing properties of their feathers, marine mammals and seals become easy prey if oil sticks their flippers to their bodies and internal damage to animal and bird bodies. In addition to the negative effects on living resources, oil spills highly affect non-living ecosystems as well. By poisoning the food chain and contaminating breeding areas, thousands of marine organisms suffer from indirect effects of the spill. This can result in stress, illness, organ failure, damage to the immune system, eye damage, reduction of eggshell thickness, and skin irritation. Oil pollution comes in many forms and has many sources. Some hydrocarbons do not cause major problems when released into ecosystems: they are volatile and easily degraded. Unfortunately, most oils – especially products that are being mass transported such as crude oil – do pose a great threat.11 They are released through three main sources of pollution: land-based pollution, sea-based pollution, and natural seepage. The causes of the release are also threefold: accidental, operational, and illegal.  

                                                                                                               9 International Convention for the Prevention of Pollution by Ships, adopted on 3 November 1973 (MARPOL) (London) UKTS 27 (1983) Cmnd. 8924; 12 ILM (1973) 1319. Amended by Protocol Relating to the Convention for the Prevention of Pollution from Ships, 17 ILM (1978) 546. In force 2 October 1983. Annexes I-VI in force. 10 AUSTRALIAN MARITIME SAFETY AUTHORITY, “The Effects of Oil on Wildlife”, amsa.gov.au /marine_environment_protection/. 11 GLOBAL PROGRAM OF ACTION FOR THE PROTECTION OF THE MARINE ENVIRONMENT FROM LAND-BASED ACTIVITIES (GPA), The State of the Marine Environment. Trends and processes, UNEP/GPA, 2006, 15.

2

1.2 Sources of oil pollution12 1.2.1 Natural seepage

Oil entering the marine environment through human processes of extraction, production, and consumption is a familiar situation. However, natural processes, especially from geological formations, can cause oil to be released in ecosystems as well. Studies indicate that natural seepage is a process likely to be running through much of geological time. Therefore, it is important to accurately estimate the amount of oil seeps in order to assess the behavior and the potential effect of petroleum in and on the marine environment. 13 In 1985, the estimated total of natural seeps ranged widely from 200,000 to 6,000,000 tons/year.14 Although these studies were based on a global study incorporating extensive geological considerations, scientists mainly used extrapolations from only a few known seeps. By calculating a revised estimate of the global seepage rate, based on assumptions of crude oil that could be released over reasonable periods of geologic time, global estimates were compiled. This theory was first developed and used by KVENVOLDEN and HARBAUGH in 1983 and incorporated by the NRC in 1985.15 However, in 2003, KVENVOLDEN and COOPER considered the estimates made by the NRC too low.16 For that reason the NRC adjusted and re-ranged the estimates between 200,000 and 2,000,000 tons/year with a best estimate of 600,000 tons. This decrease, however, does not imply a decrease of seeps but rather a better method of making estimates. One of the new techniques for identifying new seeps is the use of remote sensing.17 Several studies have accurately estimated seepage rates in several marine areas such as the entire Gulf of Mexico (140,000 tons), Southern California (20,000 tons) and Alaska (400 tons) using remote sensing.18 The effects of natural seepage on the marine environment are rather small.19 Studies of biological activity showed that benthic fauna communities in areas with an oil seep are the same as communities in oil-seep-free areas.20 Furthermore, KOONS and BRANDON discovered in 1975 at Coal Oil Point that hydrocarbons are concentrated close to the seeps. No trace of petroleum was discovered in the water and sediments.21 This can be explained by the low and chronic leakage rates, contrary to the effects of a sudden, on-time oil spill. However, natural seepage is the single largest source of Polycyclic Aromatic Hydrocarbons (PAH)22 input to the sea.23

                                                                                                               12 This Section does not provide an exhaustive listing of oil pollution sources. Only main sources are listed as well as sources whose data enabled comparison between datasets from 1983 and 2003. 13 C.K. COOPER and K.A. KVENVOLDEN, “Natural seepage of crude oil into the marine environment”, Geo-Mar Lett, 2003 (23), 145; J.M. HUNT, Petroleum Geochemistry and Geology, New York, W.H. Freeman & Company, 1996, 743 p. 14 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 69-70. 15 J.W. HARBAUGH AND K.A. KVENVOLDEN, “Reassessment of the Rates at which Oil from Natural Sources Enters the Marine Environment”, Mar. Environ. Res, 1983, 226-230. 16 C.K. COOPER and K.A. KVENVOLDEN, “Natural seepage of crude oil into the marine environment”, Geo-Mar Lett, 2003 (23), 145. 17 H.M.A. VAN DER WERFF, Knowledge-based remote sensing of complex objects: recognition of spectral and spatial patterns resulting from natural hydrocarbon seepages, s.l., 2006, 7-22. 18 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 70. 19 J.W. HARBAUGH AND K.A. KVENVOLDEN, “Reassessment of the Rates at which Oil from Natural Sources Enters the Marine Environment”, Mar. Environ. Res, 1983, 234-235. 20 P.H. DAVIES and R.B. SPIES, “The infaunal benthos of a natural oil seep in the Santa Barbara Channel”, Mar. Biol., 50(3), 227-237. 21 J.W. HARBAUGH AND K.A. KVENVOLDEN, “Reassessment of the Rates at which Oil from Natural Sources Enters the Marine Environment”, Mar. Environ. Res, 1983, 234. 22 See infra Subsection 1.2.2. 23 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 113.

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1.2.2 Land-based oil pollution24

General land-based pollution is the source of numerous problems marine ecosystems encounter today.25 Numerous toxic substances – ranging from fertilisers and pesticides to metals and chemicals – originate from factories, ports, and car exhausts and contaminate precious and vital aquatic ecosystems. Nearly all the emissions of greenhouse and ozone-depleting gases are due to extensive land-based anthropogenic activities. GESAMP lists seven sub-sources responsible for general land-based pollution: (1) urbanisation, (2) industry, (3) agriculture, forestry, and aquaculture, (4) hydrological changes, (5) commerce and transport, (6) tourism, and (7) military activities and social conflict. The main causes of oil pollution are industrial activities and urbanisation. Through urban and industrial runoff and (illegal) discharges, atmospheric deposition and coastal facility spills, nearly 200,000 tons of oil are released into the aquatic environment.

1.2.2.1. Urban runoff and discharges

Waste from transportation and refinement activities, aggregated with urban runoff, waste, and petroleum consumption, is responsible for 71% of the total land-based oil input. Chronic contamination from the consumption of oil is the result of non-point petroleum spills, the burning of fossil fuels and municipal wastewaters discharges. This in turn results in compounds of PAHs in sediments, which demonstrate levels of persistence and toxicity beyond observations made following oil spills. 26 PAHs are categorized under the class of Persistent Organic Pollutants (POP) that enter the environment due to human activities.27 They are the result of incomplete combustion of, amongst others, organic matter, emission sources, automobile exhausts, and stationary matters (e.g., electricity-generating power plants). 28 Because PAHs are highly lipid-soluble, the gastrointestinal tract of mammals and other organisms absorbs these hydrocarbons.29 This reception and intrusion of PAHs in metabolic processes can be fatal for survival and reproduction.30

1.2.2.2. Atmospheric deposition

Atmospheric deposition, categorized as land-based pollution because most polluting sources are land-orientated, is the result of the extraction, transportation, and consumption of oil and accounts for the second biggest source of pollution with a share of 26.5%.31 Although the effects are limited to local air quality, their impact is significant. 32 The NRC, together with several studies, suggests that atmospheric pollution is, next to natural seepage, one of the most important sources of marine pollution through POPs, especially PAHs.

                                                                                                               24 Some authors and scientists categorize oil pollution from offshore installations as land-based oil pollution. In this thesis, this source is categorized as sea-based oil pollution because of the increased oil drilling and extraction activities at greater depths and further away from coasts. 25 GESAMP, A Sea of Troubles, Rep. Stud. No. 70, UNEP/GESAMP, 2001, 19-25. 26 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 28-33. 27 J.M. NEFF, “Polycyclic Aromatic Hydrocarbons” in S.R. PETROCELLI and G.M. RAND, Fundamentals of Aquatic Toxicology, Washington D.C., Hemisphere Publishing Cooperation, 416-454. 28 R.K. JAIN, S.K. SAMANTA and OMV. SINGH, “Polycyclic aromatic hydrocarbons: environmental pollution and bioremediation”, Trends Biotechnol. 2002, 243. 29 R.K. JAIN, S.K. SAMANTA and OMV. SINGH, “Polycyclic aromatic hydrocarbons: environmental pollution and bioremediation”, Trends Biotechnol. 2002, 243. 30 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 28-29. 31 E. SOMERS, Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, 427, No. 212. 32 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 30.

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Regulatory action has been taken to diminish the problem. The treaty of Helsinki, adopted in 1974 and fully replaced in 1992, was the first to address this problem as a serious threat to the marine environment. However, the scope of the treaties was limited to the Baltic Sea. This lead to the Treaty of Paris, adopted in 1992, which formulates a similar answer to the rising atmospheric deposition in the North-East Atlantic.

1.2.2.3. Coastal facility spills

Coastal facility spills are the smallest source of oil input with an annual average of 4,900 tons.33 Most of the oil spilled is primarily composed of refined products. 33% of the oil spills occur through accidents at coastal pipelines and marine terminals. Because of the coastal location of these accidental spills, pollution is likely to have severe effects from both episodic spills and chronic releases. In the time period 1990-1999, US Coastal Guard reported 1,185 spills in coastal and marine waters in the United States. The annual average of oil input is estimated at 1,900 tons/year or nearly 39% of the annual coastal facility spills input. 1.2.3 Sea-based oil pollution

Every year, over 444,000 tons of oil are injected into the aquatic environment due to sea-based pollution. The biggest sources of pollution are vessels and vessel operations. This is followed by offshore petroleum extraction activities as the second biggest polluting source. Offshore extraction pollution includes platform pollution, atmospheric deposition, and produced water pollution.

1.2.3.1. Vessel-source pollution

Ship-source pollution poses a great threat to oceans and aquatic environments due to the increasing amount of ships sailing the oceans, especially oil tankers. This in turn is the result of the increasing international seaborne trade, in spite of global economic downturn. In Figure 1 below, the global amount of merchant ships during the period of 2007-2011 by type of ship is displayed. The relevant data is compiled from the United Nations Conference on Trade and Development (UNCTAD) Statistics.34 These figures show that over one third of the total amount of ships are oil tankers. This increases the risk for incidents because of a greater opportunity for failure and possible accidents. Ship-source pollution can be divided in two types: operational and accidental.35 Over the past decades, action has been taken by the international community to diminish the total amount of oil spilled and protect the marine environment, such as the 1954 Convention for the Prevention of Pollution of the Sea by Oil, or ‘OILPOL’ convention and the 1958 High Seas Convention, or ‘CHS’.36 Rules are implemented concerning technical aspects of ships such as the double hull obligation and separated ballast tanks (SBT), the level of competence of the crew and administrative requirements such as the keeping of an oil-journal and the possession of certain certificates. Despite these initiatives, which raised international maritime security, problems remain.

                                                                                                               33 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 55 and 221-222. 34 UNCTADSTAT, “Merchant Fleet by Flag of Registration and by Type of Ship, Annual, 1980-2011”, UNCTAD, 2012, unctadstat.unctad.org/TableViewer/tableView.aspx?ReportId=93. 35 See infra Subsections 1.3.1 and 1.3.2. 36 International Convention for the Prevention of Pollution of the Sea by Oil (London) 327 UNTS 3; UKTS 54 (1958) Cmnd. 595; 12 UST 2989, TIAS 4900. In force 26 July 1958. Amended in 1962 and 1969; Convention on the High Seas, adopted on 29 April 1958 (Geneva) 450 UNTS 82; UKTS 5 (1963) Cmnd. 1929; 13 UST 2312, TIAS 5200. In force 30 September 1962; See also MARPOL; Articles 192-237 UNCLOS.

5

Flag states have the primary responsibility to take all necessary measures to ensure maritime safety and are thus responsible for the enforcement of all relevant international regulations.37 Before the 1940s, almost all ships were registered in countries with a large maritime tradition and an advanced, developed economy. 38 Merchant ships were well controlled and enforcement was high. Although most ships today are still owned by companies registered in these countries, more and more merchant ships are registered in so-called ‘flag of convenience’ states. These states have only a limited interest in international maritime standards and in enforcing them. The Report of the Committee of Inquiry into Shipping, under the chairmanship of Lord Rochdale, pointed at six basic features that characterize ‘flag of convenience’ states:

a. The country of registration authorizes foreign citizens to own merchant ships under its flag and/or control them;

b. The procedures for registration or withdrawal thereof are easy; usually a ship may be registered in one of the consulates abroad;

c. The revenues from operating ships are not subjected to local taxation, or the levies are modest; the sole expenses are usually the single registration and annual tonnage fees which, as a rule, are insignificant and depend not upon the revenues of the ship-owner but on the amount of tonnage; guarantees may be given or arrangements reached regarding exemption of future taxes;

                                                                                                               37 Article 20 CHS; Articles 94, §3-4 and 213-222 UNCLOS; Convention on the International Regulations for Preventing Collisions at Sea, adopted on 20 October 1972 (COLREG) UKTS 68 (1984) Cmnd. 9340. In force 1 June 1983; International Convention for the Safety of Life at Sea, adopted on 1 November 1974 (SOLAS) 1184 UNTS 2; UKTS 46 (1980) Cmnd. 7874. In force 25 May 1980, as subsequently amended. 38 P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 398-399.

0

200

400

600

800

1000

1200

1400

1600

2007 2008 2009 2010 2011

Mill

ions

of to

nnes

loa

ded

Figure 1: International seaborne trade 2007-2011

Other types

Container Ships

General Cargo

Bulk Carriers

Oil Tankers

Source: Compiled from UNCTADStat 2012

6

d. The country of registration is a small State which under no circumstances needs all the tonnage registered but the receipts from modest fees imposed on a large amount of tonnage can significantly affect its national income and balance of payments;

e. Manning the crews of ships with foreigners is freely authorized; f. The country of registration has no authorities, nor administrative means for effectively

enforcing national or international rules with respect to navigation; it has neither the desire nor the power to control shipping companies.39

The very first ‘flag of convenience’ states were Panama, Liberia, and Honduras. In the following decades, the list grew longer. Many of the new states do not have a long maritime history or do not possess significant infrastructure such as Saint Kitts and Mongolia, making it highly likely most ships will never call at ports in these countries.40 The growing popularity of ‘flag of convenience’ states is a detrimental development for the international environment. Due to the insufficient enforcement of international rules and standards, substandard vessels, i.e., vessels that do not comply with international regulations, are still operating today. In order to comply with their regulatory responsibilities, many flag states rely on ‘classification societies’.41 Some of these societies have a good reputation and ensure thorough assessment, but others do not, which leads to poor enforcement. Because flag states are free to choose which society they will depend on, most chose the most convenient rather than the best.42 Fortunately, port state regulations and subsequent controls have contributed to an increased enforcement of international rules.43 In Europe, North America, and Japan, controls have lead to an increased safety and a diminished number of substandard vessels. However, in other parts of the world, states are not equally efficient in controlling ships entering their ports and inadequate ships are far less likely to be challenged.

1.2.3.2. Offshore Petroleum Extraction

The second biggest sea-based threat is the continuous expansion of offshore installations with a pollution rate of 38,000 tons/year. Three sub-sources are responsible for this amount: platform pollution, atmospheric deposition, and produced water pollution. Platform pollution is the result of the intensive exploration and production of crude oil from underwater wells. Two types of pollution can occur: large spills, which occur after accidents or technical failures, or slow chronic releases, which go mostly unnoticed. One of the most recent and most devastating offshore oil spills is the Deepwater Horizon oil spill in 2010. On 20 April 2010 an explosion killed 11 platform workers and caused a wellhead blowout. For almost 3 consecutive months, over 700,000 tons of crude oil gushed into the Gulf of Mexico, causing the largest environmental disaster in history for the United States, leaving behind the Exxon-Valdez oil spill.44 Even after such serious incidents, today’s platforms are not immune from leaks, as witnessed by the Elgin gas leak

                                                                                                               39 G.S. EGIYAN, “Flag of Convenience or Open Registration of Ships”, Mar. Policy 1990, 107. 40 P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 398-399. 41 A.K-J. TAN, Vessel-source marine pollution: the law and politics of international regulation, Cambridge, Cambridge University Press, 2006, 43-47. 42 P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 399. 43 Article 218 UNCLOS; Article 5 and 6 MARPOL; Regulation 19, Chapter 1, SOLAS; The Paris Memorandum of Understanding on Port State Control, adopted on 26 January 1982 (Paris MoU) (Paris) 21 ILM (1982). In Force 1 July 1982. 44 PBS NEWSHOUR, “New Estimate Puts Gulf Oil Leak at 205 Million Gallons”, 2 August 2010, pbs.org/newshour/rundown/2010/08/new-estimate-puts-oil-leak-at-49-million-barrels.html.

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reported on 25 March 2012. 45 Until now, the source and cause have not been identified. Although this leak concerns gas and not oil, this incident shows that even now platforms are not entirely safe. Atmospheric deposition by platforms is caused during production, transport, and refinement activities.46 The compounds that escape during these processes are twofold: they are either volatile and rapidly degradable, or heavier and may deposit to the ocean surface. The US Clean Air Act defines these heavy, depositable compounds as Volatile Organic Compounds (VOC). 47 Since the 1990’s researchers have assessed the impact of VOCs on the marine environment. Nevertheless the precise significance on aquatic environments is not yet clear.48 Atmospheric pollution also contributes to PAH pollution. 49 But extraction and transportation from platforms only contribute a small amount of PAH to the marine environment. 50 Offshore and consumption PAH pollution compares 1 to 9 when studying anthropogenic pollution data. Produced water is the single largest volume source of waste produced by the oil and gas industry.51 This waste is the result of exploration, production, and transportation by the oil industry, both onshore and offshore. During the oil production, produced waters are generated and pumped to the surface. The water is commonly withdrawn at the wellhead but often during pipeline drips or separators located at gathering stations as well. This water is then treated to separate the free oil. After this process, the waters are either injected back into the reservoir or discharged overboard. The amount of generated water varies widely.52 Discharges of produced waters are allowed as operational discharges under national and/or international rules and allowable maxima vary by region or nation. But as with vessels, discharges that exceed these limits can cause serious problems. 1.2.4 Total amount of oil pollution: a comparison

In the table and two figures below the share of each source in the total amount of oil pollution in 1983 and 2003 is visualized in one table and two pie charts. These statistics are an adaptation of the data compiled from the National Research Council (NRC). The NRC, as part of the National Academy of Sciences (NAS), is a “private, non-profit institution that provides expert advice on some of the most pressing challenges facing the nation and the world”.53 In 2003, the NRC published its third report about oil pollution: ‘Oil in the Sea’, after publishing two previous reports in 1975 and 1985.54 It is still considered by top scientists as the “best estimate of oil’s impact on the oceans”.55

                                                                                                               45 BBC NEWS, “Elgin platform gas leak: Exclusion zone in place”, 27 March 2012, bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-17505448 46 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 71. 47 United States Clean Air Act (CAA) (Washington) 77 Stat. 391; 42 USC Sec. 7401-7671q. In force 17 December 1963. 48 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 71. 49 See also J.S. LATIMER and J. ZHENG, “The Sources, Transport, and Fate of PAHs in the Marine Environment” in P.E.T. DOUBEN (ed.), PAHs: An Ecotoxicological Perspective, Chichester, West Sussex, John Wiley & Sons Ltd., 2003, 9-34. 50 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 47. 51 J.M. EVANS, J.P. FILLO and S.M. KORAIDO, “Sources, Characteristics, and Management of Produced Waters from Natural Gas Production and Storage operations” in F. REINER ENGELHARDT and J.P. RAY, Produced Water: Technical/Environmental Issues and Solutions, New York, Plenum Press, 1992, 151-152. 52 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 71; J.M. EVANS, J.P. FILLO and S.M. KORAIDO, “Sources, Characteristics, and Management of Produced Waters from Natural Gas Production and Storage operations” in F. REINER ENGELHARDT and J.P. RAY, Produced Water: Technical/Environmental Issues and Solutions, New York, Plenum Press, 1992, 151-152. 53 NATIONAL ACADEMY OF SCIENCES (NAS), “Who we are”, nationalacademies.org/about/ whoweare.html. 54 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 16 and 69. 55 USATODAY, “Land-based oil spills add up, too”, 30/06/2010, usatoday.com/news/nation/2010-06-29-land-spills_N.htm.

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Table 1: Average annual releases of petroleum by source (in thousands of tons)

1983 2003 Natural seepage 300 600 Land-based pollution 1,571 196.9

Coastal facility spills 92 4,9 Urban runoff and discharges 1,223 140 Atmospheric deposition 256 52

Sea-based pollution 1,353 444 Extraction of petroleum 50 38 Tank vessels spills 359 100 Operational discharges (cargo washings) 653 36 Operational discharges (vessels ≥100 GT)

not available 270

Losses from non-tanker shipping 291 not available Total 3,224 1,240.9 Source: compiled from NRC 2003

In this compiled dataset, land-based pollution comprises coastal facility spills, atmospheric deposition, and urban runoff and discharges. Sea-based oil pollution consists of exploration, extraction and transportation of petroleum by offshore installations, tank vessel spills, (illegal) operational discharges by cargo washings, operational discharges for ships larger than 100 Gross Tonnage (GT) and losses from non-tanker shipping. Note that operational discharges from ships larger than 100 GT are only embedded in the 2003 data due to the improved data collection, and losses from non-tanker shipping only in the 1983 data because this category is now embedded into the general category of petroleum extraction.

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When assessing these pie charts, two facts are noteworthy. The first is the expansion of natural seepage from 9% in 1983 to 48% in 2003. In the past 20 years, the amount has risen by 100% from 300,000 to 600,000 tons/year. Although input through natural seepage has risen significantly, the high amount of 600,000 tons/year is not unheard of: in 1975, the NRC reported the same amount, as did Kornberg in 1981.56 But the second and most remarkable fact is the large decrease of land-based pollution, while sea-based pollution remains more or less stable. However, this does not imply that sea-based pollution did not make any progress. The overall oil input into the marine environment dropped by 61.6%. The overall sea-based oil input dropped by 67.2%, an even greater reduction. However, due to, on the one hand, an increase of natural seepage, combined with, on the other hand, a significant drop in land-based pollution (87.5% to be exact), the total amount of sea-based pollution seems to remain stable. While this would be a false conclusion, land-based pollution has nevertheless decreased 20.3% more compared to sea-based pollution. This is primarily caused by the increasing problem of illegal operational oil pollution.57 1.3 Types of oil pollution Generally, there are two types of oil pollution: accidental and operational. Accidental pollution is caused by either a technical or human failure, or both. Operational pollution on the other hand, is the result of the normal functioning of vessels and coastal industrial facilities. Under national and international regulations, this type of oil pollution is allowed, but strictly limited. 1.3.1 Accidental oil pollution

The first in a long list of serious accidents is the disaster of the Torrey Canyon on 18 March 1967. 58 Following a navigational error, the Liberian oil tanker struck the Seven Stones Reef, close to the Cornish mainland. Nearly 120,000 m3 of crude oil contaminated British and French coastal areas, killing thousands of birds and marine organisms. Until today, the Torrey Canyon oil spills remains the largest spill in the history of Great Britain. In spite of international legal action to prevent these spills, new accidents occurred during the following decades. The Metula, Amoco Cadiz, Exxon Valdez, Sea Empress, Erika, and Prestige oil spills still leave their marks. Yet it was in 2010 the United States and the world experienced the largest oil spill in history following an explosion on the BP Deepwater Horizon drilling rig in the Gulf of Mexico. Eleven men were killed and 780,000 m3 of crude oil gushed into the Gulf for nearly three consecutive months. The result was devastating and the effects still last today. It will take years, maybe decades, for the marine environment to recover from this immense tragedy. 1.3.2 Operational oil pollution

Although accidental oil spills are well-known and their impacts disastrous, operational oil spills account for more annual marine pollution than accidental spills. 59 Most of the operational oil discharges are legal. For instance, it is common practice for tankers to use seawater as ballast during voyages. When ships return to their loading port they use seawater to clean their tanks, thus

                                                                                                               56 NRC, Oil in the Sea III, Input, Fates and Effect, NRC, 2003, 16. 57 See infra Subsection 1.3.2. 58 E. SOMERS, Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, 373, No. 194. 59 Ibid.

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contaminating the water. The polluted water is then discharged back in the ocean, causing oil to enter coastal environments. In order to avoid these negative effects, several methods are developed and incorporated in international and regional regulations such as Load On Top (LOT), Crude Oil Washing (COW) and Separated Ballast Tanks (SBT). LOT consists of pumping the polluted water, which was used to wash the tanks, into specialised tanks where the water can separate itself from the oily substance during the next voyage. Once separated, the water will be discharged, while the remaining oil residue will be pumped back into the tanks. The next charge of oil will then be pumped on top of the oil residue. The COW system introduces a system where crude oil is used to wash tanks instead of seawater. This technique has the advantage of cleaning tanks more efficiently without polluting water. The last technique, SBT, is based on the presence of a second compartment next to the oil tanks, especially designed to contain ballast water. This will prevent the ballast water being contaminated by the inevitable oil residues present in the oil tanks, as is the case with non-SBT ships. Although legal discharges can cause serious problems, illegal oil spills remain the biggest problem in sea-based pollution. The vastness of the seas and oceans does not allow coastal states to monitor thoroughly and efficiently. Fortunately, new technologies are easing this task for coastal states around the world. New partnerships and increased cooperation between states and organizations prove to elevate the monitoring capabilities. However, when evaluating enforcement statistics, it is obvious that much work still needs to be done. 1.4 MARPOL Enforcement statistics  According to recent studies, international efforts were not in vein and operational oil input diminished, despite worsening general marine pollution.60 In 2006, the GPA published its periodic review of the marine environment, concluding that the total amount of oil input into the oceans had decreased significantly. However, one of the biggest problems in this area of pollution remains the illegal operational discharges by ships. International regulations, especially the MARPOL rules, define the amount of oil that can be released during normal operations, but few ships abide by these rules. In 2007, GESAMP published its report No. 75 that provides estimates of the total amount of oil entering the marine environment from sea-based activities.61 When assessing the amount of oil input resulting from operational discharges, GESAMP came to the conclusion that only a slight difference in MARPOL compliance rates result in huge differences in volumes of oil released into the oceans. The Group of Experts evaluated Port State Control (PSC) inspection reports, indicating the number of vessels violating MARPOL standards, and figured that 86% is the average amount of vessels complying with these standards. When applying this compliance rate of 86%, it is estimated that a total of 188,000 tons of oil is injected into the oceans. This implicates a 93% difference compared to the 13.500 tons discharged when all vessels would comply (see Table 1 and Figure 4). These figures clearly show enforcement is the main objective to tackle the degradation of the marine environments. Yet prosecution records reveal a lot of work still needs to be done. In February 2011, Belgian Secretary of State responsible for the North Sea, released figures indicating that only 5 to 6% of the offenders detected by aerial or satellite remote sensing were prosecuted.62

                                                                                                               60 GESAMP, The State of the Marine Environment, No. 39, UNEP/GESAMP, 1990, 426 p. 61 GESAMP, Estimates of Oil Entering the Marine Environment from Sea-based Activities, UNEP/GESAMP, 2007, 83 p. 62 DE MORGEN, “Slechts 5 procent van illegal lozingen in Noordzee bestraft”, 27 February 2011.

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Therefore, This thesis will try to formulate an answer to tackle international operational oil pollution by pointing out the flaws in the current enforcement mechanisms and researching efficient procedures to exchange evidentiary information between flag states, coastal states, and port states. Table 2: Annual operational oil outflow estimates by source (in thousands of tons)

Ship type 100% compliance 86% compliance Bulk Carriers 3,517 49,175 Combination Carriers 151 2,104 Container Vessels 2,338 32,690 Dry Cargo Vessels 1,203 16,812 Miscellaneous 1,143 15,976 Offshore Vessels 951 13,289 Ferries/Passenger Vessels 1,838 25,690 Reefer Vessels 613 8,566 RoRo Vessels 1,226 17,138 Tankers, All cats. 475 6,549 Total 13,453 187,990 Source: compiled from GESAMP 2007

Bulk Carriers

Combination Carriers

Container Vessels

Dry Cargo Vessels

Miscellaneous

Offshore Vessels

Ferries/Passenger Vessels

Reefer Vessels

RoRo Vessels

Tankers, All Cats.

0 10000 20000 30000 40000 50000 60000

86% Compliance 100% Compliance

Source: compiled from GESAMP 2007

Figure 4: Annual operational oil outflow estimates by source (in thousands of tonnes)

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Chapter 2. Remote Sensing to detect illegal discharges Two thirds of the world is covered with water; the other one third consists of land. The task of monitoring this vast area in search for oil pollution offenders among the thousands of ships sailing these oceans is therefore a major challenge for the international community. Because it is impossible to patrol the seas with boats, new ways had to be found to improve observation capabilities. Today, remote sensing fills this gap and ensures more scrutiny by states and organisations. In the early days, aerial remote sensing provided the best answer. By conducting frequent flights over busy shipping lanes, monitoring became more efficiently than ever before. Now, satellite remote sensing is complementing aerial remote sensing to further improve observations even more. This Chapter will give a brief overview of the historical developments surrounding remote sensing, together with a brief introduction to the existing technologies and a focus on techniques used to track oil slicks. This will be followed by a short overview of the current international legal framework. The last Section will give an introduction to the AIS radar technology. Although this is not a part of remote sensing by itself, it is of vital importance to understand the technology and the link between AIS and satellite remote sensing. Without AIS, satellite images of illegal discharges would not lead to effective legal proceedings. 2.1 A historical introduction The true origin of remote sensing is to be traced back to 1826, when the first photograph was taken.  63 Since then, people have tried to map their surroundings and reach higher grounds to get a bird’s eye view of their environment. To conduct the first aerial remote sensing, the French Gaspard Felix Tournachon used a balloon. Since then, balloons were the first choice for aerial reconnaissance. It was the first major leap in the field of remote sensing. Especially the military used this new technique to map enemy position, as was done in the American Civil War. In addition to balloons, kites and pigeons were used as. The second major leap in remote sensing techniques came with the advent of airplanes in 1909. This technique was refined during wars, largely during World War II, when new recording methods such as infrared cameras emerged. During the Cold War, aerial remote sensing improved year after year as more sophisticated recording devices were developed. Not only aerial remote sensing was developed during the 20th century, space-based remote sensing similarly advanced during years of war and cold war. It all started in 1891, when a rocket propelled camera system was developed in Germany. However, the first real remote sensing image taken from space by a satellite, and thus marking the start of space-based remote sensing, was in August 1959, 2 years after the launch of the first human satellite, Sputnik, on 4 October 1957 by the USSR. On 1 April 1960, systematic Earth observation from space commenced following the launch of the Television Infrared Observation Satellite (TIROS-1) by the United States, which was primarily used for                                                                                                                63 G. JOSEPH, Fundamentals of Remote Sensing, Hyderabad, Universities Press India, 2005, 13-15.

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meteorological observations. The real expansion of remote sensing began following the launch of the first Earth observation satellite, again by the United States, and was called the Earth Resources Technology Satellite (ERTS-1). With the launch of the second ERTS satellite in January 1975, the name was changed to the better-known LANDSAT64. The USSR developed satellites as well and started space-based microwave remote sensing following the launch of COSMOS-243, carrying a four-channel microwave radiometer, and the METEOR satellite. With the installation of the first METEOSAT in 1977 and ENVISAT in 2002, Europe became an important player in satellite remote sensing. Today, an increasing amount of countries operate remote sensing satellites: France, Canada with the two RADARSAT satellites, India, China, Japan and in the future maybe North Korea.65 The use of remote sensing has changed the way we interact with our environment and how we collect data, which helps to make everyday decisions. The applications range from weather forecasts to military reconnaissance, coastal zone management, and support the application of MEA’s. Especially the agricultural sector uses remote sensing intensively to detect the spectral emissions of vegetation, and farmers are able to track and detect starved or deceased crops.66 Despite this wide range of applications, a general international framework is not yet accepted and its legal position is not as developed as its science. 2.2 Types of satellites used to detect oil discharges Satellites are deployed in outer space. The path of the satellite is called the orbit, which varies in altitude according to the specific needs of the instruments.67 Some instruments require a high orbit in order to provide the best results; others must be placed in low orbit. The orientation and the rotation relative to the Earth can determine which orbit is needed. There are two kinds of satellites: geostationary and near-polar satellites. The first type are geostationary satellites, with sense the same area of the Earth at all times and are generally positioned at very high altitudes of approximately 36.000 km. Because of the relative exact rotation speed with the Earth, they seem stationary. Mostly weather and communications satellites have geostationary orbits. The second type is the near-polar satellite, which follows a designed orbit, mostly north to south. This allows them to sense most of the Earth’s surface for a certain period of time. Some of these satellites are sun-synchronous and thus sense the Earth at a constant local time of day. Most near-polar satellites in orbit have an altitude of approximately 850 km. Although many satellites circle the Earth today, only a small number are used to detect oil discharges.68 The list below summarises the low orbit satellites in operation today. RADARSAT 2 Designed and launched by the Canadian Space Agency (CSA) in 1995, the predecessor RADARSAT 1 had served the scientific community extensively due to its wide variety of instruments aboard the spacecraft. However in 2007, RADARSAT 2 was launched as its successor with more modern equipment and updated tools. The satellite is equipped with a SAR and is still active today.

                                                                                                               64 Land Remote-Sensing Satellite System. 65 BBC NEWS, “North Korea moves rocket into place for launch”, 9 April 2012, bbc.co.uk/news/world-asia-17650344. 66 H. FEDER, “The Sky’s the Limit? Evaluating the International Law of Remote Sensing”, N.Y.U. J. Int'l L. & Pol., 1991, 600. 67 N. Levin, Fundamentals of Remote Sensing, IMO/International Maritime Academy, 1999, 35-36. 68 For more information please consult: earth.esa.int.

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ENVISAT Launched in 2002 by the ESA, the near-polar orbiting satellite’s main purpose is to support science research and to monitor the evolution of the environment and climate changes. ENVISAT is the successor of the very successful ERS-1 and 2 satellites. ENVISAT is equipped with ASAR, MWR, and many other instruments.69 On 8 April 2012, just a few weeks after celebrating its tenth birthday, mission control lost contact with ENVISAT. After one month of rigorous attempts to re-establish contact, ESA declared the end of the ENVISAT mission on 9 May 2012. Several failure scenarios have been drawn up, but the cause has not been found yet. Although chances for recovery are considered very low, engineers will

continue attempts to re-contact the satellite.70 To fill the void, ESA will again use RADARSAT’s 1 and 2. The ENVISAT programme will be replaced by the SENTINEL programme in 2013. In the picture on the left, the last image transmitted from ENVISAT is displayed before the loss of contact, a radar image of Spain’s Canary Islands. After ten years of active service, the curtain has fallen over ENVISAT, one of ESA’s most successful Earth observation missions. SPOT ‘Système Pour l’Observation de la Terre’ or ‘System for Earth Observation’ is designed by the French space agency CNES (Centre Nationale d’Études Spatiales). Five satellites have been launched up till now and two more are planned in 2012 and 2013. Only SPOT 4 and 5 are still in use today after their respective launches in 1998 and 2002. SPOT satellites are equipped with high-resolution visible imaging instruments and updated instruments with increased spectral and multispectral modes. Terra The Terra satellite is part of NASA’s Earth Observation System (EOS) as its flagship satellite. Launched in 1999, has been gathering data since 2000. It is a low orbit sun-synchronous satellite. The main goal of the EOS programme, and the Terra satellite in particular, is to monitor the Earth’s environment and climate changes. The Terra satellite carries five high-tech instruments such as a multi-angle and a moderate-resolution imaging spectro-radiometer. These satellites provide the necessary information for coastal states and authorities in order to detect and track oil pollution and prosecute offenders. The distribution for these data and images differs in every country. When looking closely to the five countries to be assessed, there are two different institutions for distribution: the EMSA in Europe as a part of the EU and the NASA in the United States.71 Because of the large number of European coastal states, initiatives have been taken to organize and enhance cooperation in detecting oil spills through satellite images.72 For these reasons, Directive 2005/35/EC was adopted, which designated EMSA as having “a key role to play in working with the Member States in developing technical solutions and providing technical assistance relating to the

                                                                                                               69 See for more information infra Section 2.3. 70 ESA, “ESA declares end of mission for Envisat”, 9 May 2012, esa.int/esaCP/SEM1SXSWT1H_index_0.html. 71 See for further reading on EMSA infra Subsection 3.3.1. 72 See also infra Subsection 3.3.1.

1 © ESA

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implementation of this Directive”. 73 In order to perform this task effectively, EMSA installed the CleanSeaNet service in April 2007.74 This pan-European service collects, centralises and distributes the required SAR satellite images retrieved from ENVISAT and RADARSAT-2 satellites.75 CleanSeaNet delivers oil spill alerts in near real time (30 minutes) to both the Coastal State(s) and EMSA for detected slicks as well as giving access to the satellite images and associated information over the Web and via email for low-resolution images.76 Coastal authorities have full access to the CleanSeaNet images, which are then combined with AIS data to detect the offending vessel.77 78 2.3 Current state of remote sensing technologies Today, both aerial and satellite remote sensing are used by coastal states.79 This technique is also the dominant method of detection of oil slicks worldwide because, by definition, visible discharges are in excess of MARPOL’s discharge limits.80 When a satellite picks up an oil slick, an airplane can be directed to collect more data, which not only allows a more in-depth monitoring of the oil discharge, but also makes aerial remote sensing missions more efficient. The satellite data, combined with the data from aerial reconnaissance, is very important for evidentiary purposes. These new techniques, which increase the probability of detection, have the ability to limit the number of possible oil polluters. Not only is remote sensing useful for backtracking to the possible offender, forecasting the oil spill trajectories is equally important for coastal states. This allows them to evaluate whether or not clean-up actions have to be initiated. Before introducing the current remote sensing technologies, it is important to point at the principle distinction between active and passive satellite sensors. Passive sensors record the electromagnetic radiation reflected from the Earth, in most cases this is derived from the reflectance of solar energy.81 This is one of the reasons data recording occurs mostly during daytime. Because the satellite picks up the natural energy and do not require to send energy first in order to sense the Earths surface, as is the case with active sensors, these satellite are categorized as passive. Although passive sensors have very useful applications, only active sensors are used to monitor and detect oil slicks.82 The following Sections will provide a brief overview to the current technologies, instruments and types of satellites used to detect oil slicks, both by satellites and airplanes. 83

                                                                                                               73 Directive of the European Parliament and of the Council No. 2005/35/EC, 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements, OJ.L. 30 September 2005, ed. 255, 11. 74 For more information please consult: cleanseanet.emsa.europa.eu. 75 O. TRIESCHMANN, “Illegal Oil Spills from Ships: Monitoring by Remote Sensing” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Martinus Nijhoff Publishers, 2010, 218. 76 CLEANSEANET, “About the EMSA CleanSeaNet service”, 2007, cleanseanet.emsa.europa.eu/About/index.html. 77 See Subsection 3.3.1 for further information on the EMSA CleanSeaNet service. 78 CLEANSEANET, “Directive 2005/35/EC”, 2011, cleanseanet.emsa.europa.eu/About/directive_2005-35-EC.html. 79 O. TRIESCHMANN, “Illegal Oil Spills from Ships: Monitoring by Remote Sensing” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Martinus Nijhoff Publishers, 2010, 216-227. 80 IMO, Visibility limits of oil discharges of Annex I of MARPOL, Resolution MEPC No. 61(34), 9 July 1993. 81 ARTS & HUMANITIES RESEARCH COUNCIL, “Satellite Monitoring as a Legal Compliance Tool in the Environment Sector”, 2008, ucl.ac.uk/laws/environment/satellites/docs/1_AHRC_Technical_BG.pdf. 82 For further reading please consult J.-G. LIU and P. J. MASON, Essential Image Processing and GIS for Remote Sensing, Hoboken, New Jersey, Wiley-Blackwell, 2009, 443 p. 83 O. TRIESCHMANN, “Illegal Oil Spills from Ships: Monitoring by Remote Sensing” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Martinus Nijhoff Publishers, 2010, 216-227.

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2.3.1 Synthetic Aperture Radar (SAR)

SAR is an extremely complex technology to detect oil slicks on the ocean surface. Because of its independence from weather conditions and sunlight, this technique is widely used. SAR equipment can be found on airplanes and satellites, however, this Section will only focus on satellite SAR. In the most basic sense, SAR satellites map changes to electromagnetic waves by sending and receiving microwave pulses and compiling the result in a two-dimensional image. Oil has an absorbing effect on these sorts of waves, which reduces backscatter on the water surface. This implies no radar return will be generated when oil is present on the water surface. In the picture beneath, taken by the ENVISAT-ASAR84 on 1 June 2007 of the northwest coast of Spain, two sharp-edged features are clearly visible on the surface.85 These are the areas with no radar return because of a reduced backscatter and, as said above, is the first indication of a possible oil spill.

Source: CleanSeaNet 2007 © ESA/EMSA These dark features were ultimately identified as oil slicks and even indicate the possible polluting vessel. But in general, when evaluating SAR images, dark-features do not always indicate a potential oil slick. Other phenomena such as natural substances floating on the sea surface (e.g., algae), cold-water masses or even local low-wind areas (< 2-3 m/s), local changes in the wind field or variations of the

bottom topography can reduce backscattering. This makes it impossible to identify the existence of oil on the water surface by just assessing SAR images.86 In order to determine whether the dark-features represent an oil spill, additional data such as sea-surface temperature and local wind speed must be available to enhance interpretation, but this information is not always available, making further investigations by airplanes a necessity in order to identify possible spills.

                                                                                                               84 Environment Satellite – Advanced Synthetic Aperture Radar. 85 CLEANSEANET, Remote Sensing Image Samples, cleanseanet.emsa.europa.eu/Remote_Sensing/examples.html 86 O. TRIESCHMANN, “Illegal Oil Spills from Ships: Monitoring by Remote Sensing” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Martinus Nijhoff Publishers, 2010, 217.

Oil slick 1

Potential polluting vessel

Oil slick 2

2.

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In the images 3 and 4, the functioning of an SAR satellite is visualised. 87 In the first diagram, the satellite transmits a microwave pulse to the surface. This radar pulse is then backscattered by the ground targets in the second image. When the microwave radar pulse shows signs of reduced backscatter,

there is a possibility of oil slicks on the ocean surface. In conclusion, SAR satellites offer ocean monitoring independent of weather and visibility conditions, which greatly enhances its usability.

However, SAR images alone cannot determine if oil has entered the marine environment and is therefore not a sufficient instrument. Even with contextual data, additional investigations are necessary to prove an oil spill. 2.3.2 Side-Looking Airborne Radar (SLAR)

The second remote sensing technology, the SLAR, functions very similarly to the SAR but has a much more limited range due to its use by airplanes. Where SAR satellites can map an area with a size of up to 400 x 400 km, the SLAR’s maximum range is limited to a cross-track coverage between 60 and 80 km. 88 The SLAR transmits high-frequency pulses from both sides of the aircraft and collects the backscatter to compile two-dimensional images. Because of the similar functioning compared to the SAR, the same limitations apply as described in the previous Section.89 In the image below, the different types of remote sensing instruments are shown aboard maritime surveillance aircraft Dornier 228 LM. Next to the SLAR this surveillance aircraft is equipped with a Forward-Looking Airborne Radar (FLAR), a microwave radiometer (MWR), a Laser Fluorescence Sensor (LFS) and a Central operator console (COC). The MWR and the LFS will be discussed in more detail below. The SLAR antenna, which transmits the high-frequency pulses, is displayed underneath the aircraft.

                                                                                                               87 Courtesy of the CENTER FOR REMOTE IMAGING, SENSING & PROCESSING, 2012, crisp.nus.edu.sg. 88 OPTIMARE, “Side-Looking Airborne Radar”, 2012, optimare.de/cms/en/divisions/fek/fek-products/side-looking-airborne-radar.html 89 O. TRIESCHMANN, “Illegal Oil Spills from Ships: Monitoring by Remote Sensing” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Martinus Nijhoff Publishers, 2010, 218.

SAR Satellite

Incident Radar Pulse

Ground Targets 3.

SAR Satellite

Backscattered Radar Pulse

Ground Targets 4.

Source: © CRISP 2012

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2.3.3 Infrared and Ultraviolet Scanner (IR/UV)

The third remote sensing technique is an aerial type and consists of two types of scanners, an infrared and an ultraviolet scanner, often combined in one instrument. The aircraft typically scans the area beneath the airplane with an angle that extends from -45° and +45°, making the width of the scan around twice the flight altitude.90 The ultraviolet scanner is designed to record the wavelengths of the sun reflected from the water surface. Because of greater sunlight absorption, oil slicks on the water surface cause shorter wavelengths, which allows discovering even very thin oil films using this technique. In the picture on the left, a two-dimensional UV image is displayed, showing oil slicks in white. The high refractive index of the oil causes it to appear brighter than the surrounding water.91 The infrared scanner, on the other hand, is able to determine the water temperature beneath the aircraft. Due to the lower emissivity of oil compared to water, the oil appears to be colder than the general water temperature. In the picture on the right, an oil slick is clearly visible due to its darker colour. Although this technique allows identifying oil spills accurately, a number of limitations apply.

                                                                                                               90 Ibid. 91 Science Education though Earth Observation for High Schools (SEOS), “Marine Pollution Learning Module”, 2012, lms.seos-project.eu/learning_modules/marinepollution/marinepollution-c02-s18-p01.html.

5. © Dornier Aerospace

6. © EARSel 7. © EARSel

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Because of the use of reflected sunlight, UV scanners can only be used in good visibility conditions. On the other hand, Infrared scanners are unable to detect oil slicks through a cloud cover due to the high absorption by water vapour. Also, oil films with a thickness of more than 0.5 mm will absorb sunlight, having the opposite effect of appearing to be warmer than surrounding surface water. 2.3.4 Microwave Radiometer (MWR)

The MWR is a powerful remote sensing tool to detect oil slicks and measure the film’s thickness almost completely weather-independently by penetrating clouds and fog.92 The MWR sensor is a passive sensor, which detects radiation transmitted within the microwave range. The functioning is very similar to the infrared sensor, but instead of picking up temperatures, MWR sensors picks up the brightness temperature in the microwave range. In the left image, a MWR image is displayed showing a heavy fuel oil slick with a volume of 17m3. The scan image

on the ground is 282 m and the flight direction of the airplane is vertically orientated. The bright spots indicate the position of the oil; normal sea surface microwave brightness is generally dark. 2.3.5 Laser Fluorescence Sensor (LFS)

Oil is a substance that absorbs light. This quality already proved to be useful for other remote sensing instruments earlier. 93 In addition to reduced backscattering, UV and IR differences from surface water, oil has also the ability to emit fluorescence after it absorbed sunlight. 94 Complex mixtures of various hydrocarbons with differing fluorescence-spectroscopic patterns cause the oil film to emit this fluorescence, which can be measured by the LFS.95 The acquired information can give insights about the type of oil measured and the thickness. The LFS also has the advantage of distinguishing between substances that occur naturally on the sea (fish oil) or harmless hydrocarbon discharges such as edible oil. In the image on the left, a two-dimensional image is displayed, showing a combination of the LFS and multispectral scanner. As can be seen, the LFS is capable of measuring the oil film thickness, which

provides very useful information. However, limitations apply as well. The LFS can only be operated in

                                                                                                               92 O. TRIESCHMANN, “Illegal Oil Spills from Ships: Monitoring by Remote Sensing” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Martinus Nijhoff Publishers, 2010, 219. 93 See supra Subsections 2.3.1 to 2.3.4. 94 SEOS, “Supplement 2.19: The Laser Fluorosensor”, 2012, lms.seos-project.eu/learning_modules/marinepollution/marinepollution-c02-s19-p01.html. 95 O. TRIESCHMANN, “Illegal Oil Spills from Ships: Monitoring by Remote Sensing” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Martinus Nijhoff Publishers, 2010, 219.

9. © EARSel

8. © Joint Research Centre

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good visibility conditions and can only determine deliberate oil discharges with a thickness up to 10-20 μm. This makes it impossible to track large quantities of oil after accidental discharges. 2.3.6 Human Visual Inspections

The last, but not the least, remote sensing instrument is the human eye. Flight operators are also recognized as part of the remote sensing chain. Through experience and training, they are able to determine the oil thickness and other aspects of the oil slick to a certain extent. To ensure a fast response, decisions to take action against oil spills are generally taken while still flying.96 2.3.7 Remote sensing process

Every remote sensing instrument listed above has its advantages and disadvantages. However, when combining the abovementioned tools, extensive datasets can be acquired to determine whether or not an oil slick is present on the high seas or in coastal waters. Due to the increase of accurate satellite remote sensing, large areas up to 400 x 400 km can be monitored at the same time. This can give primary indications for further investigation for aerial remote sensing operations, which makes these expensive and intensive missions efficient. Not only technology can make remote sensing operations more efficient. International cooperation such as the Bonn Agreement in Europe, which coordinates aerial remote sensing operations since the 1980’s, can help to heighten the monitoring capabilities.97 In the past, there was a demand for an integrated information system, the so-called ‘one-stop-shop’. In 2007, as mentioned above, EMSA founded CleanSeaNet. This was the first step in achieving the main goal to harmonise oil-spill monitoring capabilities on a European scale.98 Also, transatlantic cooperation between the EU and the United States can be highly beneficial for overall coherence and effectiveness. Following the gathering of all necessary data, the process of tracking the offender can commence. With the aid of the AIS, the authorities can track ships more easily and try to determine which vessel was responsible. After the offender is identified, the prosecution can begin, starting with gathering evidence and determining the state competent to start proceedings. These procedures depend on local jurisdiction, but fortunately, general rules are harmonized in international legislation. Section 2.5 of this Chapter will go into further detail about the AIS while Chapter 5 will give an overview of the different actions port states, coastal states, and flag states can take when the polluter is identified. 2.4 International legal implications of satellite remote sensing activities 2.4.1 Definition and problem setting

Although the previous Section of this Chapter discussed the different aerial and satellite remote sensing technologies, this Section will only focus on the legal implications of satellite remote sensing. Before giving a short introduction on the international legal position of remote sensing activities, it is

                                                                                                               96 O. TRIESCHMANN, ibid., 220. 97 Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances, adopted on 13 September 1983 (Bonn Agreement) (Bonn) International Environmental Law – Multilateral Treaties 983, 68/10. In force 1 September 1989. 98 O. TRIESCHMANN, “Illegal Oil Spills from Ships: Monitoring by Remote Sensing” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Martinus Nijhoff Publishers, 2010, 223.

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necessary to first take a closer look at the different definitions of remote sensing in order to get a general view of its legal position in international law. Untill now, no uniform definition has been accepted in the international community. The only definition drafted in an international legal document was in the 1986 UN Principles on Remote Sensing, stating: “The term ‘remote sensing’ means the sensing of the Earth’s surface from space by making use of the properties of electromagnetic waves emitted, reflected, or diffracted by the sensed objects, for the purpose of improving natural resources management, land use, and the protection of the environment”.99 Unfortunately, this General Assembly resolution is not binding and lacks the necessary widespread acceptance. Not surprisingly, this does not contribute to a sense of legal certainty in this area. However, some aspects of remote sensing are generally accepted. Three definitions are non-exhaustively listed below.100

a. “Remote sensing of the Earth from outer space is defined as a methodology to assist in characterizing the nature and/or condition of phenomena on, above, or below the Earth’s surface by means of observation and measurements from space platforms, specifically, at present such methods depend on the emission and reflection of electromagnetic radiation.”

b. “Remote sensing is the acquisition of information about specific objects or phenomena in which the information gathering device is not in contact with the subject under investigation.”

c. “Remote sensing consists of (a) collecting data concerning objects, materials, and situations on the Earth by means of sensors mounted into fast-moving craft on land, at sea, in the air, and in space, and (b) processing such data for quantification, qualification and mapping purposes.”

When analysing these definitions, the most apparent aspect of remote sensing is, as stated earlier, the fact that the sensing instrument is not in contact with the sensed object. Other aspects are generally accepted as well when reading the definitions. One of these aspects is that remote sensing is conducted on land, in the air, or in outer space. Also, the collection of data as the main goal of remote sensing comes forward as a general characteristic. These elements are apparent in the UN Remote Sensing Principles definition. The fact that remote sensing does not have an international legal definition and position, does not imply all its aspects are not regulated. Other related features such as the actual sensing, the data processing, and distribution have triggered discussions in the international community. These discussions brought forward vital questions that needed to be answered, especially with regard to sensing operations.101 When a satellite senses objects on the Earth’s surface, the action is initiated in outer space, but is performed on the ground. This has led to the important question whether or not ‘sensing’ takes place in outer space, thus falling within the scope of the outer space treaty where all claims of sovereignty have been explicitly banned. When sensing is not considered an action in outer space, national sovereignty has to be applied. This interpretation is analogous with the international accepted air law provisions. The Chicago convention of 1944 declares that a state has complete and exclusive sovereignty over the airspace above its territory. 102 If an aircraft would conduct remote sensing operations above foreign national territory without the consent of the sensed state, this would clearly                                                                                                                99 UN General Assembly, Principles Relating to Remote Sensing of the Earth from Outer Space, Resolution No. 41/65, UN Doc. A/RES/41/65, 3 December 1986 (hereafter: UN Remote Sensing Principles). 100 I.H.PH. DIEDERIKS-VERSCHOOR and V. KOPAL, An Introduction to Space Law, Alphen aan den Rijn, Wolters Kluwer, 2008, 71-72. 101 I.H.PH. DIEDERIKS-VERSCHOOR et al., ibid., 73; Y. ZHAO, “Regulation of Remote Sensing Activities in Hong Kong: Privacy, Access, Security, Copyright and the Case of Google”, J. Space L. 2010, 547-566. 102 Convention on Civil Aviation, adopted on 7 December 1944 (Chicago Convention) (Chicago) 295 UNTS 15 (1994). In force 4 April 1947.

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violate the sovereignty of this state under the Chicago convention. However, despite the shift to the opinion that satellite remote sensing is only legal with the consent of the sensed state, it is highly unlikely that states could make a strong legal case or protest diplomatically today to protect their sovereign rights. This is because all areas of the world are already sensed without protest and more and more states operate satellites that inevitably sense other states. Also, a growing number of authors believe remote sensing falls within the fundamental right of freedom of information.103 In order to avoid legal problems and diplomatic issues, states have taken bilateral and multilateral actions over the years.104 2.4.2 Legal Framework

In the most basic sense, there are two types of instruments that provide the legal framework in international law: multilateral and bilateral instruments. When evaluating the multilateral elements, only two legal documents appear: the Outer Space Treaty of 1967 and the 1986 Principles Relating to Remote Sensing of the Earth form Outer Space.105 Next to these legal documents, several conferences and committees deal with the legal position of remote sensing, such as the UN Committee on the Peaceful Use of Outer Space (UNCOPUOS) and the UN Conferences on the Exploration and Peaceful Uses of Outer Space (UNISPACE). In the multilateral context, it is also worth mentioning the cooperative initiatives on a commercial basis. Bilateral agreements concerning remote sensing are more common, in contrast to the multilateral agreements. However, we will discuss only one agreement, namely the LANDSAT accords between the US and various nations around the world. This Section will first discuss the multilateral instruments, followed by the bilateral instruments, and will close with an assessment of the current framework.

2.4.2.1. Multilateral instruments

As mentioned earlier, the lack of a uniform legal definition prevents the much-needed legal certainty in this area of law. This is added to the fact that there is almost no trace of remote sensing regulation in international legal documents. The only indication of remote sensing in space law treaties can be found in Article 1, section 1 and 2 of the Outer Space Treaty, which states: “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, […], and shall be the province of all mankind. Outer Space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.” 106 It is widely accepted that satellite remote sensing involves the use of outer space and thus falls within the scope of this article.107 This also involves all actions surrounding the use of satellites, such as installation and guidance, has to be performed for the benefit of all nations.

                                                                                                               103 H.L. VAN TRAA-ENGELMAN, Commercial Utilization of Outer Space: Law and Practice, Leiden, Martinus Nijhoff Publishers, 1993, 235-236. 104 I.H.PH. DIEDERIKS-VERSCHOOR and V. KOPAL, An Introduction to Space Law, Alphen aan den Rijn, Wolters Kluwer, 2008, 73; Y. ZHAO, “Regulation of Remote Sensing Activities in Hong Kong: Privacy, Access, Security, Copyright and the Case of Google”, J. Space L. 2010, 547-566. 105 UN General Assembly, Principles Relating to Remote Sensing of the Earth from Outer Space, Resolution No. 41/65, UN Doc. A/RES/41/65, 3 December 1986. 106 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, adopted on 27 January 1967 (Outer Space Treaty) (London, Moscow and Washington) 610 UNTS 205. In force 10 October 1967. 107 I.H.PH. DIEDERIKS-VERSCHOOR and V. KOPAL, An Introduction to Space Law, Alphen aan den Rijn, Wolters Kluwer, 2008, 73.

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Two conclusions can be drawn when reading the article. Firstly, it clearly states that national sovereign rights are impossible with regard to the use and exploration of outer space or the Moon and other celestial bodies. This implies no country can legally protest or prevent actions in outer space, including the existence of remote sensing satellites. Secondly, the article also clearly states that the use of outer space is free for all nations, without discrimination. This again implies that the operation of remote sensing satellites is not illegal.108 The second international legal document is the UN Remote Sensing Principles Resolution. When analysing the legal status of this resolution, three elements have to be taken into account.109 Firstly, the resolution was adopted unanimously by the General Assembly. This indicates the most widespread acceptance of the principles by all states around the world. The second element concerns the nature of the instrument used. By choosing to draft these principles in a General Assembly resolution, which is by definition recommendatory and not-binding, instead of drafting a binding treaty, states clearly voiced their preference for a less mandatory instrument. This leads to a lack of acceptance and significance in practice.110 The third element to be considered is that the principles are not in any way combined with the words ‘legal’ and ‘declaration. This is in contrast with the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, which led to a conclusion of several space law treaties.111 When analysing these elements, it is clear that, although these principles provide a good legal basis for further remote sensing activities, one must practice restraint when consulting these principles and applying them in practice. However, this resolution is an excellent guideline for negotiations among states and private entities, and can eventually be used to develop a strong binding legal framework for satellite remote sensing in the future. The basic purpose of these principles is to establish the legality of sensing operations from space and the distribution of available data to all states in a non-discriminatory way.112 But despite this purpose, the current regime has been rendered inadequate over the decades and does not address the current critical legal issues between the sensing and sensed states. This is due to the exponential development during the last twenty years of remote sensing technology and methods and the rise of private entities in this area, as well as a hugely increased distribution of data on a commercial basis. Also, the number of users of this data has grown immensely to include, not only states, but aid agencies, UN organizations, universities, media, insurers, and corporations as well. This hinders widespread use of this powerful technology for all societies. Next to the Outer Space Treaty and the UN resolution, the UNCOPUES and UNISPACE Conferences have provided insights into the legal position of remote sensing activities as well. In 1970, the UN General Assembly requested the Scientific and Technical Subcommittee of UNCOPUS to set up a Special Working Group on remote sensing.113 The main purpose of this working group was

                                                                                                               108 L.G. POWELL, “The Legal Implications of Remote Sensing in Outer Space on National Sovereignty”, Auckland U.L.Rev. 1986, 330. 109 H.L. VAN TRAA-ENGELMAN, Commercial Utilization of Outer Space: Law and Practice, Leiden, Martinus Nijhoff Publishers, 1993, 244-245. 110 J.K. HETTLING, “The use of remote sensing satellites for verification in international law”, Space Policy 2003, Vol. 19, 37. 111 UN General Assembly, Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, Resolution No. 1962 (XVIII), 13 December 1963. 112 A. ITO, “Improvement of the Legal Regime for the Effective Use of Satellite Remote Sensing Data for Disaster Management and Protection of the Environment”, J. Space L. 2008, 47. 113 I.H.PH. DIEDERIKS-VERSCHOOR and V. KOPAL, An Introduction to Space Law, Alphen aan den Rijn, Wolters Kluwer, 2008, 76,

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to promote ‘optimum utilization’ of the new technology in order to make this beneficial for all individual states, while taking into account “sovereign rights of states and the provisions of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”.114 In 1974, the Legal Subcommittee was set up by the General Assembly with the aim to investigate the legal implications of remote sensing.115 Despite hard work and the formulation of certain principles, consensus could not be reached among its members. Obstacles were sensitive issues such as sovereign rights and access to remote sensing data. After failed negotiations in 1978, the Working Group became less relevant and the attention shifted to the UNISPACE Conference, the second conference held in Vienna in 1982. The first UNISPACE Conference was held in 1968, one year after the adoption of the Outer Space Treaty and was basically a scientific conference that aimed to create greater awareness of the potential and capabilities of space technology for peaceful applications and was not mandated to make any recommendations.116 Because of the rapid development of the space technologies, the General Assembly considered there was a need to re-evaluate the past evolutions. During the Conference, UNCOPUOS played an important part as a focal point and was asked to make all preparations for the conference.117 However, the real force behind the decision to host a second conference was neither the General Assembly nor UNCOPUOS. The developing countries were of the opinion that, in order to ensure space technology is used for the benefit of all nations and not to become military, especially during the Cold War era, there was a need that all countries should be involved in the key decisions. In total, 94 states participated in Vienna, next to a number of intergovernmental and non-governmental organizations. The most prominent group at the conference was no doubt the ‘Group of 77’, a group of developing countries which had a noticeable influence on the topics discussed, especially with regard to satellite remote sensing. 118 Four findings resulting from the conference were of importance. The first finding pointed out that a comprehensive framework had to be developed that gives non-discriminatory access to the primary data concerning the territory of the sensed state. This was to avoid the situation were the sensed state is denied access to this information while other countries can access datasets for commercial use. This is closely linked with the second finding, which insisted on studying the viability of a worldwide satellite remote sensing system. The third finding stressed the need for future complementary and compatible remote sensing systems and was aimed at the countries that developed the technologies at the time. This was important in order to avoid redundant experiments and costly changes to existing equipment or equipment of other, non-developing states. In this context, the conference concluded that the long-term future of remote sensing lays in the monitoring of the environment and the usage of renewable resources. The last finding pointed out meteorological data had to be made freely available. This was for the benefit of all nations and especially those nations whose prosperity is dependent on agriculture. To conclude, it is clear that the second UNISPACE conference laid a strong emphasis on the rights and freedoms of the developing countries due to the ‘Group of 77’. These negotiations and recommendations affected the

                                                                                                               114 UN Doc. A/AC 105/125, 17 March 1974, 4. 115 See in this context also UN General Assembly, International Cooperation in the Peaceful Uses of Outer Space, Resolution No. 3234 (XXIX), 12 December 1974. 116 N. JASENTULIYANA, “The Second United Nations Conference on the Exploration and Peaceful Uses of Outer Space”, J. Space L. 1982, Vol. 10, 188. 117 I.H.PH. DIEDERIKS-VERSCHOOR and V. KOPAL, An Introduction to Space Law, Alphen aan den Rijn, Wolters Kluwer, 2008, 77. 118 I.H.PH. DIEDERIKS-VERSCHOOR et al., ibid.

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UNCOPUOS negotiations and led to the adoption of the already discussed UN Remote Sensing Principles of 1986.119 In 1999, the third UNISPACE Conference was held, again in Vienna. The year in which the conference was held, was not randomly chosen. Before the start of the new millennium, the United Nations aimed to review the achievements and developments made in the past century together with a look at the next century and how to achieve and maintain the peaceful use and exploitation for the benefit of all nations.120 One of the main results of this conference was the decision to review the UN Remote Sensing Principles and adapt these to the 21st century, taking into account the growing globalization and privatization. Other recommendations targeted the improvement of UNCOPUOS and promoting recognition of and adherence to international space law.121 These recommendations resulted in the proposal of Brazil to start discussions on ‘the development of an international convention on remote sensing’ during the 2003 session of the UNCOPUOS Legal Subcommittee.122 However, no consensus was reached, mainly due to US opposition, and even today, no enhancement of the UN Remote Sensing Principles has been applied. Not only states are negotiating agreements and enhancing cooperation. Industries and commercial entities are responsible for numerous arrangements, which are also beneficial for states.123 In this way, these agreements can be used to introduce basic principles for commercial activities. This could lead to an integrated system in the field of commercial remote sensing satellites and eventually to a global system.

2.4.2.2. Bilateral instruments

Numerous bilateral agreements have already been concluded between states, especially concerning the operation of ground stations around the world for near-polar satellites.124 This is best illustrated by giving an introduction on the LANDSAT bilateral agreements.125 These agreements were concluded in the 1980’s between the US Space Agency NASA and Argentina, Australia, Brazil, Canada, India, Japan, and Sweden. France, Japan, and ESA were not taking part in the agreements due to the development of their own satellite remote sensing system, but they promised to complement the US system.126 The agreements included the construction of ground stations at their own expense in order to acquire and process remote sensing data. In return, NASA promised to share all information and data with the scientific community. Also, countries without LANDSAT facilities, but within range of the ground station, can have access to the datasets. UNCOPUOS and regional UN agencies have expressed their satisfaction, numerous times. In the past decades, there have been proposals to merge the bilateral LANDSAT initiative into a global initiative

                                                                                                               119 H.L. VAN TRAA-ENGELMAN, Commercial Utilization of Outer Space: Law and Practice, Leiden, Martinus Nijhoff Publishers, 1993, 238-248. 120 C.W.N. DAVIES, “Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III), Vienna, Austria, 19-30 July 1999”, J. Space L. 1999, Vol. 27, 134. 121 C.W.N. DAVIES, ibid., 140. 122 UNCOPUOS, “Provisional Agenda for the forty-sixth session”, UN Doc. A/AC,105/L.244 (2003). 123 H.L. VAN TRAA-ENGELMAN, Commercial Utilization of Outer Space: Law and Practice, Leiden, Martinus Nijhoff Publishers, 1993, 249-250. 124 P.A. SALIN, Selected legal aspects of commercial remote sensing: Bilateral regulations and proprietary provisions relative to LANDSAT, SPOT, MOS-1, ERS-1 and RADARSAT, not published, thesis LL.M. Degree, Institute of Air and Space Law, McGill University, Montreal, 1991, 55-129. 125 I.H.PH. DIEDERIKS-VERSCHOOR and V. KOPAL, An Introduction to Space Law, Alphen aan den Rijn, Wolters Kluwer, 2008, 74-75. 126 L.D. FUQUA and G.J. MOSSINGHOFF, “United Nations Principles on Remote Sensing: Report on Developments, 1970-1980”, J. Space L. 1980, Vol. 8, 103.

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with global operational centres, complementary with the regional centres. The numerous disasters, especially the 2004 t,,sunami, have rapidly lead to the establishment of the ‘United Nations Platform for Space-based Information for Disaster Management and Emergency Response’ or UN-SPIDER in resolution 61/110 of the UN General Assembly.127 The UN-SPIDER has offices in Bonn, Beijing, and Vienna since October 2007 and falls under the authority of the Office for Outer Space Affairs (OOSA) in Vienna. Although this platform is not a global programme as such and is limited to disaster management and emergency response, it is a step in the right direction to create a truly global centre for satellite remote sensing.

2.4.2.3. Conclusion

When reviewing the current legal position of satellite remote sensing it is clear that this regime is vague and uncertain with only two legal documents, the Outer Space Treaty and the UN Remote Sensing Principles, covering remote sensing. Because of an increasing commercialisation of remote sensing activities and data distribution and usage, an update of this legal regime is urgent. Today an increasing amount of remote sensing data is protected with copyright restrictions, often coupled with exclusive licences. This hampers the development of important secondary information markets.128 It is of vital importance to control and regulate the distribution and availability of data, before private entities become empowered to disseminate this highly important data on a non-regulated basis. This is illustrated by the numerous access restrictions on private and semi-private remote sensing data. Following laws governing freedom of information, which are still important sources regulating access to information, all public-sector information is free to access.129 Restrictions to access are only possible when statutory regulation exists. However, when for example evaluating the ESA, the European Meteorological Satellites Organisation (Eumetsat), and the CNES data policies, a troublesome conclusion can be drawn. Even partially tax-money funded remote sensing data is not (always) subject to open access. This is due to the different approaches to the same data and information because of the various intellectual property rights (IPR) in different jurisdictions. In addition, due to a lack of clear legislation concerning the dissemination of public and private remote sensing data, these practices remain legal. However, having legislation does not necessarily mean all issues are resolved. The quality of the legislation is an important aspect as well, as demonstrated by the WMO meteorological data dissemination system. In 1995, the WMO adopted resolution no. 40 on “policy and practice for the exchange of meteorological and related data and products including guidelines on relationships in commercial meteorological activities”.130 The main purpose of this resolution was to broaden and enhance the free and unrestricted exchange of meteorological data by introducing a three-tier data dissemination system. Despite this initiative, vague wording and varying interpretations did not lead to a uniform application of the regulations. This results in different treatment and pricing for the same information in different countries.131

                                                                                                               127 UN General Assembly, United Nations Platform for Space-based Information for Disaster Management and Emergency Response, Resolution No. 61/110, 15 January 2007. 128 C. DOLDIRINA and L.J. SMITH, “Remote Sensing: A case for moving space data towards the public good”, Space Policy 2008, 22. 129 C. DOLDIRINA et al., ibid., 26-27. 130 WMO, policy and practice for the exchange of meteorological and related data and products including guidelines on relationships in commercial meteorological activities, resolution No. 40, 26 October 1995. 131 C. DOLDIRINA and L.J. SMITH, “Remote Sensing: A case for moving space data towards the public good”, Space Policy 2008, 25.

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To avoid these situations becoming common practice, a uniform remote sensing data access policy has to be concluded in order to ensure and preserve the basic human right of freedom of information. This would not only benefit consumers and businesses, but environmental protection agencies as well. When there would be no free access to ocean and watercourse remote sensing data, it would become increasingly difficult and expensive for these agencies to monitor ships and prosecute offenders. Although this situation is highly unlikely today, there are no clear predictions for future market developments. But before an international data access framework can be adopted, a general and clear remote sensing legal framework is needed in the form of a binding treaty. To avert the WMO data system situation, this new treaty has to meet certain quality standards such as predictability, stability, compatibility, enforceability, and effectiveness and above all consistency and coherence with other international legislation.132 Fortunately, as mentioned above, with new initiatives to create global programmes of remote sensing, new steps are being taken to create a global framework that could hopefully lead to a comprehensive legal regime. 2.5 Automatic Identification System The automatic identification system, or AIS, has been introduced by the IMO in 2000 as a part of the obligatory navigational equipment to be carried aboard every ship meeting the requirements set out in the SOLAS convention.133 The new regulations were applied to ships built on or after 1 July 2002. Ships constructed before this date had to comply by 31 December 2004, however, different timetables were applicable to different types of ships. Regulation 19, Section 2.4 of SOLAS Chapter V, Carriage requirements for shipborne navigational systems and equipment, states the following: “2.4 All ships of 300 gross tonnage and upwards engaged on international voyages and cargo ships of 500 gross tonnage and upwards not engaged on international voyages and passenger ships irrespective of size shall be fitted with an automatic identification system (AIS) […].

2.4.5. AIS shall: 1. provide automatically to appropriately equipped shore stations, other ships and aircraft

information, including the ship’s identity, type, position, course, speed, navigational status and other safety-related information;

2. receive automatically such information from similarly fitted ships; 3. monitor and track ships; 4. and exchange data with shore-based facilities.”

When reading the text, it becomes clear that the AIS is generally serving two purposes. It provides essential information to, on the one hand, other similarly fitted ships, and, on the other hand, coastal facilities including shore stations, ships and aircraft. The information is being transmitted every 2-10 seconds on ordinary maritime VHF radio frequencies. The range varies from object to object. For ship-to-ship communications, the range is typically 20 nautical miles. For ship-to-shore communications, the range is larger, especially due to the elevated position of most on-shore base stations.134

                                                                                                               132 See for further reading G.C. AZZI, R. DEIGHTON-SMITH, S.H. JACOBS and A.E. KELLERMANN (eds.), Improving the Quality of Legislation in Europe, Leiden, Martinus Nijhoff Publishers, 1998, 337 p. 133 IMO, “AIS Transponders”, 2011, imo.org/ourwork/safety/navigation/pages/ais.aspx. 134 T. ERIKSEN, G.K. HØYE, B.J. MELAND and B.T. NARHEIM, “Space-based AIS for global maritime traffic monitoring”, Acta Astronaut. 2008, 240.

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The main purposes for the introduction of the AIS on ships are to assist in the efficient navigation of ships and to avoid ship collisions, to operate Vessel Traffic Services (VTS), and to protect the environment. 135 The environment protection tool can roughly be divided in two facets: firstly the protection by avoiding collision of oil tankers, thus eliminating accidental oil spills risks, and secondly the protection by backtracking ships in case an oil slick is found in the ocean in order to detect the possible polluters. Backtracking, as shown in the image above taken by ENVISAT near the Canary Islands on 15 September 2009, is in the most basic sense very straightforward. When a fresh oil slick is discovered, authorities can consult the VTS graphic shipboard displays in order to backtrack the ships that were in the slicks vicinity at the time of the oil spill. However, in practice the identification process can be very complex,

especially in high density shipping lanes. Also, ships are rarely observed during the discharge process and the AIS signal is not always very strong. When a similar situation occurs, it is necessary to reconstruct the ‘spilling scenario’ taking into consideration the meteorological and oceanographic parameters.136 Critical in such back-tracking simulation is to estimate the actual moment in time that the discharge started. When this is calculated, the traffic data has to be compared with the results. Two concerns are important in this context: firstly, the ignorance of the type and quantity of oil, which can have a deviating effect on the simulation and secondly, as said above, the right meteorological and oceanographic situation at the time of the spill. Several regional programmes have been set up to combine efforts to monitor oil spills such as the AESOP, the aerial and satellite surveillance of operational pollution in the Adriatic Sea Project. The programme’s main purpose is to assess the feasibility and capabilities of satellite and airborne images together with the potential of linking AIS data to the imagery. But apart from the use in oil pollution detection operations, AIS is primarily used for traffic management. In Europe, Directive 2002/59/EC made the AIS equipment mandatory for all ships of 300 GT and above.137 To control and centralize this AIS data, the EMSA launched the SafeSeaNet service. SafeSeaNet is a vessel traffic monitoring and information system established in order to enhance maritime safety, port security, marine environmental protection, and efficiency of maritime transport.

                                                                                                               135 P.O. BRETT, M.S. EIDE, Ø. ENDRESEN, J.L. ERVIK and K. RØANG, “Intelligent ship traffic monitoring for oil spill prevention: Risk-based decision support building on AIS”, Mar. Pollut. Bull. 2007, 145. 136 A. BERNARDINI, M. DAVID, G. FERRARO, S. MEYER-ROUX, O. MUELLENHOFF, M. PERKOVIC, D. TARCHI and K. TOPOUZELIS, “Towards an operational use of space imagery for oil pollution monitoring in the Mediterranean basin: A demonstration in the Adriatic Sea”, Mar. Pollut. Bull, 2007, 418. 137

10. © ESA

 

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Chapter 3. International legal framework for illegal operational oil spill prevention and detection

Since the dawn of mankind, the high seas have supported our societies. For centuries, oceans and waterways are used for commerce, exploration, research, and the extraction of living and non-living natural resources. At the same time, they have been used as dumping sites for our waste. Because of their vast mass, oceans have an enormous regenerative capacity, which allows dumping of waste without damaging the general ecosystem and ocean currents. However, this has changed dramatically over the past century. With the recent demographic explosion, the regenerative capacity of oceans has been damaged. The huge increase of atmospheric deposition, radioactive waste dumping, oil and toxic waste pollution, and overfishing cause ocean acidification, which could in turn lead to a massive decline of oceanic resources. Although the world’s biodiversity still is large, the rate of extinction is shocking due to massive pollution.138 Fortunately, global awareness of environmental issues has grown steadily over the years and an increasing number of initiatives have been taken to tackle the global and regional marine pollution. One aspect of these initiatives is to regulate and enforce strict regulations to prevent illegal pollution and to bring offenders to court. Because of the global impact of this problem, international conferences convene to address these issues. From these conferences and meetings, a sense of urgency has grown, leading to the adoption of environmental legislation on three levels: international, regional, and national level. These legislative instruments can again be divided into rules aimed at preventing or detecting pollution. After giving a brief historical introduction, this chapter will discuss the regulatory initiatives with regard to illegal operational oil pollution at the three levels, but limited to those applicable in the five aforementioned countries: Belgium, France, the Netherlands, the United Kingdom, and the United States of America. On the international level, this chapter will discuss MARPOL, UNCLOS, and the SOLAS Convention. The EU legislative initiatives together with the Bonn Agreement framework will be discussed at the regional level. On the national level, the USA regulatory initiatives will be examined. At the conclusion of this chapter, the division between preventive and detective legislation will be made, together with some remarks about the future of operational marine pollution legislation. 3.1 From Washington to Rio: 86 years of legal environmental protection One of the first international actions taken to prevent ship source pollution was the 1926 Preliminary Conference on Oil Pollution of Navigable Waters, convened in Washington.139 The purpose was to “consider the formulating of proposals for dealing with the problem of oil pollution […] through an international agreement”. Although a draft convention was drawn up at the meeting, it was not

                                                                                                               138 BBC NEWS, “World’s Oceans in Shocking Decline”, 20 June 2011, bbc.co.uk/news/science-environment-13796479. 139 CENTER FOR OCEANS LAW AND POLICY, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, United Nations Convention on the Law of the Sea 1982: A Commentary, Dordrecht, Martinus Nijhoff Publishers, 1985, 4.

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opened for signature. However, a gentlemen’s agreement was concluded not to discharge oily water within 50 miles of the coast. A second initiative to tackle marine oil pollution was launched in 1934 when the Organization for Communications and Transit of the League of Nations convened a Committee of Experts to assess the problem of oil pollution. This resulted in a League of Nations General Assembly resolution in September 1935 to convene a conference based on a draft convention. However, the conference never took place due to the withdrawal of Germany, Italy, and the Empire of Japan from the League of Nations. Because of World War II and the conclusion of the League, the initiative was never carried out. Nevertheless oil pollution continued and in 1949, ECOSOC tried to put the issue back on the international agenda. Since then, several organizations and governments such as Great Britain researched the extent and effects of oil pollution.140 Because of their involvement in the scientific research, the British government took the initiative to convene an international meeting in London on the matter, based on the British ‘Report on the Prevention of Pollution of the Sea by Oil’, published on 2 July 1953. In April 1954 the convention commenced and on May 12 1954, the state parties agreed on the Convention for the Prevention of Pollution of the Sea by Oil, or OILPOL. This convention was the first to deal with oil pollution from tankers and contained several provisions to diminish operational oil discharges such as constraining discharge locations by defining prohibited areas, limited quantities by imposing maximum discharge rates and prevented the need of discharges by adopting construction and design measurements. Later, when the convention’s rules were standardised, new, stricter measures could be implemented such as the LOT system. Despite the first in-depth strategy to tackle operational oil discharges, the convention failed to be successful for three reasons: firstly, the lack of flag state enforcement beyond their own jurisdictions, secondly, not all flag states were party to the convention, and thirdly, the punishments and fines for treaty violations were mild. This did not change after the adoption of the more widely accepted 1958 CHS, which called upon states to prevent marine pollution without further details and only required states to ‘take account’ of existing treaty provisions such as OILPOL. 141 Although the second OILPOL amendment in 1969 had a positive diminishing effect on worldwide operational pollution, the international community realized the convention’s failure during the 1972 UN Conference on the Human Environment (UNCHE), hosted in Stockholm.142 This lead to the initiative to draw up a new international convention to prevent oil pollution and resulted in MARPOL. One year after Stockholm, MARPOL was concluded after the IMO initiative to launch a new international conference on the matter. Especially new technical developments forced lawmakers to constantly introduce new measures to decrease oil outflow, an impossible task due to inflexible amendment procedures.143 However, it was not until the adoption of the 1978 MARPOL Protocol that the treaty gained enough ratifications to enter into force on the 2nd October 1983.144 Two elements contributed to the success of the convention: firstly, the effective approach to controlling pollution by giving clear limitations and rules and allowing thorough inspections with the combination of compulsory certificates. Secondly, the flexible amendment procedure allows member states to respond quickly to new technical developments. However, this leads to numerous amendments making MARPOL difficult to use in practice.

                                                                                                               140 E. SOMERS, Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, 375, No. 195. 141 P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 386 and 403. 142 E. SOMERS, ibid., 378, No. 195; P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 403. 143 E. SOMERS, ibid., 378, No. 196. 144 See for further reading on LOSC, MARPOL and SOLAS infra Section 3.2.

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Next to the MARPOL convention, other international agreements addressed the oil pollution issue as well. In 1974, a new and fifth SOLAS convention was agreed, replacing the fourth convention drawn up in 1960. Although this convention was not aimed at pollution itself but at the safety of life at sea, some articles concern construction, navigation, and seaworthiness measures which prevent marine pollution. In 1978, a protocol to the SOLAS convention was concluded and contained additional features for oil tankers to diminish oil input into oceans. With an agreement on the 1982 LOSC, new pollution preventive rules and duties for flag states, coastal states, and port states were introduced to the international community. Especially the extension of port states and coastal states competences to enforce international standards regarding operational oil pollution was on of the most important innovations of the convention.145 It was also the first UNCLOS to address marine pollution thoroughly, due to the Torrey Canyon disaster in 1967 and a global emergence of environmental awareness, started at the UNCHE. Although MARPOL, LOSC, and SOLAS provide the best instruments available for the prevention of operational oil pollution on an international level, over the past decades numerous conventions aiming to solve the same problems were concluded at a regional level. Two groups of regional conventions will be mentioned.146 The first group of regional conventions concern three enclosed or semi-enclosed areas located in the northern hemisphere: firstly, the North Sea and North-East Atlantic, secondly, the Baltic region, and thirdly, the Mediterranean and the Black Sea. The second group lists UNEP-sponsored treaties targeted at regions in the southern hemisphere. Because of the limited scope of this introduction, only the North Sea regional initiative will be further discussed. The North Sea has always been the subject of much cooperation to preserve marine ecology. Since 1984, the International North Sea Conferences (INSC) have provided a political forum to discuss, launch, and coordinate new environmental initiatives such as the Oslo/Paris Commission. Although the INSC has been successful, no general framework treaty has been concluded so far. However, in 1992, the Paris Convention for the Protection of the Marine Environment (OSPAR) was concluded, aimed at the fragile North Sea and north-east Atlantic region.147 Belgium, France, the Netherlands, and the United Kingdom, together with 11 other countries, are party to the convention. OSPAR is applicable to the internal waters, the territorial sea, and the Exclusive Economic Zone (EEZ) of all parties, as well as to the High Seas. The main purpose of the Paris convention is to tackle all possible sources of pollution by dumping, land-based and offshore pollution in particular.148 In order to ensure the convention is updated to meet new developments or to meet new sources of pollution, parties can take binding decisions or agree on annexes. Not only initiatives to prevent oil pollution and to preserve our marine ecosystems have been taken in the North Sea and north-east Atlantic area. In 1987, the 1983 Bonn Agreement was extended to organize aerial and satellite surveillance activities in order to detect ships illegally discharging and polluting the ocean with oil and other harmful substances.149                                                                                                                145 See ERIK JAAP MOLENAAR, Coastal State Jurisdiction Over Vessel Source Pollution, The Hague, Kluwer Law International, 1998, 99-100. 146 P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 394-398. 147 Convention for the Protection of the Marine Environment of the North-East Atlantic (Paris) 3 YbIEL (1992) 759; 32 ILM (1993) 1072. In force 25 March 1998. 148 E. SOMERS, Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, 411, No. 205. 149 See for further reading infra Subsection 3.3.2.

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Since the conclusion of the LOSC on the international level and OSPAR on the regional level, no major treaty dealing with operational oil pollution has been concluded. However, other problems related to ship-source pollution such as the 2004 Ballast Water Convention, have caught the attention of the international community.150 However, problems remain and marine ecosystems continue to be deteriorated by pollution. It is the duty of all states to continue to battle illegal pollution and to efficiently implement the treaty provisions in order to preserve the oceans, living and non-living resources. 3.2 International instruments On the international level, three instruments relating to marine pollution prevention and detection are relevant: MARPOL, UNCLOS, and the SOLAS Convention. 3.2.1 MARPOL

MARPOL, as already mentioned in the historical introduction, was concluded in 1973 in London under the auspices of the IMO to answer the relative failure of OILPOL. Especially after the development of a more collective environmental awareness following the UNCHE in 1972, states were willing to take more action to prevent marine pollution. The main purpose of MARPOL is “to achieve the complete elimination of intentional oil pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances” (4th recital MARPOL Preamble). This is achieved by “establishing rules, not limited to oil pollution, having a universal purport” (5th recital MARPOL Preamble) and giving enforcement responsibilities, not only to flag states, but to port states as well, which was one of the biggest differences compared to OILPOL and was adopted by the LOSC as well. Although concluded in 1973, MARPOL did not enter into force until the adoption of the 1978 protocol at the International Conference on Tanker Safety and Pollution Prevention, convened by the IMO.151 The main reason for the agreement on a new, third protocol was the lack of ratifications by states, which changed after its adoption and allowed MARPOL to enter into force 2 October 1983.152 One of MARPOL’s greatest strengths is the easiness by which the convention is amended, compared to other international treaties. All amendments to MARPOL are decided within the Marine Environment Protection Committee (MEPC). Amendments are adopted in the form of a MEPC Resolution when two thirds of the member states, representing not less than 50% GT of the world merchant fleet, vote in favour (Article 16, section 2 MARPOL).153 Since the inception of the committee in 1974, member states have approved numerous amendments in order to update MARPOL to new technical developments, to clarify the treaty provisions and to answer implementation difficulties.154 MARPOL consists of two main parts. In the first part, the general rules are described, such as definitions and provisions concerning jurisdiction and powers of enforcement. It contains the original text of the treaty together with the texts of the four protocols. The second part deals with detailed

                                                                                                               150 IMO Convention for the Control and Management of Ships’ Ballast Water. Not in force. 151 IMO, MARPOL Consolidated Edition 2006, Beccles, Suffolk, William Clowes Ltd, 2006, iiv. 152 Next to MARPOL, two protocols were adopted as well at the same conference in 1973: firstly the Protocol concerning reports on incidents involving harmful substances and secondly the Protocol concerning arbitration 153 P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 403. 154 IMO, ibid.

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anti-pollution regulations and is divided into six annexes: Regulations for the Prevention of Pollution by Oil (Annex I); Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk (Annex II); Regulations for the prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form (Annex III); Regulations for the Prevention of Pollution by Sewage from Ships (Annex IV); Regulations for the Prevention of Pollution by Garbage from Ships (Annex V); and Regulation for the Prevention of Air Pollution from Ships (Annex VI). After the adoption of the 1978 Protocol, only Annexes I and II became obligatory for member states. The other annexes are optional. After giving an introduction on the scope of MARPOL, an extensive overview of Annex I will be given. Other annexes will only be introduced briefly due to the limited scope of this section. This will be concluded with details about certification and enforcement procedures described in the treaty.

3.2.1.1. Scope of MARPOL

The success of MARPOL is mainly due to its extensive application. By collecting all vessels, including vessels whose flag state is not a member of MARPOL, harmful substances, and offshore platforms in one treaty, MARPOL succeeds in harmonizing all oil pollution rules, creating legal certainty and making enforcement more efficient. MARPOL is applicable to ships as defined by Article 2, Section 4: “a ship means a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air cushion vehicles, submersibles, floating craft, and fixed or floating platforms”. The convention will not apply to “any warship, naval auxiliary, or other ship owned or operated by a State and used, for the time being, only on government non-commercial service”, however, flag states have to make sure government vessels will abide MARPOL “so far as is reasonable and practicable (Article 3, section 3 MARPOL). Vessels falling under MARPOL will not be judged, based on the capability to sail but on the capability to float.155 The purpose of MARPOL is to limit the input of harmful substances into the ocean as defined in Article 2, Section 2: “harmful substance means any substance which, if introduced into the sea, is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, […]”. With the use of the word ‘liable’, the treaty clearly introduces the precautionary principle. 156 Under ‘introduction into the sea’, MARPOL apprehends “any release howsoever caused from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting, or emptying” with the exception of dumping, discharges directly arising from exploration, exploitation, and associated offshore processing of seabed mineral resources and legitimate scientific research into pollution abatement or control (Article 2, Section 3, (a) and (b) MARPOL). According to Article 3, Section 1, (a) and (b) MARPOL, “all ships entitled to fly the flag of a Party to the Convention; and ships not entitled to fly the flag of a Party but which operate under the authority of a Party” fall under the scope of the treaty. With regard to ships of non-member states, the treaty uses the term ‘authority’, while the term ‘jurisdiction’ is used in case of treaty violations (Article 4, Section 2 MARPOL). Despite this difference in use of words, the effects are the same in practice because of a close link between authority and jurisdictions.157 ‘Authority’ refers to the ability to subject non-member state vessels to the MARPOL provisions in case the vessel is sailing the internal

                                                                                                               155 F. MAES, Internationaal & Europees recht, Gent, not published, 2009, 139. 156 F. MAES, ibid. 157 F. MAES, Internationaal & Europees recht, Gent, not published, 2009, 141.

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or territorial waters. This meaning is comparable with the term ‘jurisdiction’, which refers to the legal power over internal and territorial waters.

3.2.1.2. Annex I: Prevention of Pollution by Oil

Annex I is divided into seven chapters and two appendices and adopts most of the discharge criteria from OILPOL.158 It is one of the most far-reaching annexes and contains rules ranging from port facilities to vessel construction regulations and the limitation of discharges in certain areas. It has been amended twenty-three times due to its technical provisions. Port reception facilities will be discussed first in this paragraph, followed by technical construction standards and the use of an oil journal. Discharge limitations and a small contribution on the designated special areas will conclude this overview of Annex I. A. Port reception facilities According to Chapter 6 of Annex I, ports are obliged to install oil reception facilities. The content of this regulation differs depending on the location of the port. When a port is located outside a special area, port states are obliged to “ensure the provision […] of facilities for the reception of such residues and oily mixtures as remain from oil tankers and other ships”. With port, Annex I points at all “oil loading terminals, repair ports, and other ports in which ships have oil residues to discharge” (Regulation 38, A Annex I). All facilities must meet the need of ships to avoid causing undue delay. When a port is located on the coastline bordering a special area, facilities must not only provide reception capabilities of oily mixtures, but also of “all the dirty ballast and tank washing water from oil tankers” (Regulation 38, B Annex I). In addition, each party has the duty to report to the IMO of all cases where the reception facilities are inadequate (Regulation 38, C Annex I). B. Technical construction standards When evaluating the construction standards applicable to ships, a distinction has to be made between oil tankers and other ships. With regard to ships, other then oil tankers, MARPOL dictates three main standards of construction and equipment. Firstly, all ships of 400 GT and above must have a separate tank for oil residues or sludge, adapted to the type of machinery and the length of the voyage. Sludge can be defined as residues resulting from the purification of fuel and lubricants oil or oil leakages in the machinery spaces (Regulation 12, section 1 Annex I). Secondly, all ships must segregate oil and water ballast (separated ballast tanks or SBT) and carriage oil in forepeak tanks (FT) (Regulation 16 Annex I).159 This applies to ships with a minimum of 4,000 GT and oil tankers with a minimum of 150 GT. However, if there is a need to carry ballast water in oil cargo tanks that are not clean ballast tanks (CBT), this ballast water can only be discharged to reception facilities. Discharge into the sea is only possible when the ship is equipped with an oil filter and with respect to the discharge limitations depending on the ship’s position. Furthermore, an entry into the Oil Record Book is mandatory when this situation has occurred. Other ships of less than 150 GT must comply with this provision as far as is reasonable and practicable. Thirdly, as already mentioned above, oil-filtering equipment is compulsory on board all ships of 400 GT and above in order to limit the content of oil in ballast water, when retained in oil fuel tanks, to a maximum of 15 parts per million (ppm). However, ships of 10,000 GT and above must also equip the oil filters with alarm arrangements to indicate when this level of 15 ppm cannot be maintained. It also needs equipment to stop the discharge when the oil content exceeds 15 ppm. Member states can waive these requirements in certain circumstances for ships under their authority (Regulation 14, Section 5 Annex I). However, this is only possible when: (1) the ship is fitted with a holding tank with a sufficient volume for the retention of the oily bilge

                                                                                                               158 E. SOMERS, Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, 379, No. 196. 159 See also supra Paragraph 1.2.3.1 and Subsection 1.3.2.

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water; (2) all oily bilge water is retained on board for subsequent discharge to reception facilities; (3) the member state has determined a sufficient amount of reception facilities, and (4) the International Oil Pollution Prevention Certificate (IOPPC) ensures the vessel only operates within special areas. With regard to the specific oil tanker regulations, nineteen provisions–divided into three parts–must limit the impact of these types of vessels onto the marine ecosystems. However, due to the limited scope, only two important measures will be highlighted: firstly, the set of measures to prevent or limit operational discharges and secondly, the double-hull and double bottom requirement. To prevent or limit operational discharges, MARPOL introduces, next to the SBT and FT requirements mentioned earlier, three new methods to handle oil: firstly, the Crude Oil Washing (COW) method, secondly, the Clean Ballast Tank (CBT) method, and thirdly, the Inert Gas System (IGS).160 The COW method consists of cleaning the oil cargo tanks with crude oil itself, instead of using seawater. This removes the need to filter or discharge the contaminated seawater (Regulation 35 Annex I). Unfortunately, not all types of crude oil can be used to wash the cargo tanks, necessitating the use of the second method, IGS. This method is aimed at reducing the risk of explosions. When cargo tanks are washed with crude oil, hydrocarbon vapour is released, increasing the danger of an explosion in case of electrostatic discharges. By injecting the exhaust gases from main or auxiliary steam boilers into the cargo tanks, oxygen levels decrease, thus lowering the probability of an explosion. The second option is to use self-contained inert gas generators.161 The third method, CBT, has the same purpose as the SBT method. When cargo tanks are emptied, some tanks are cleaned from oil residues in order to use as ballast tanks. This ensures a separation between oil cargo and ballast water and are basically flexible SBT’s, which are in theory equally effective. However, because CBTs are on the same oil transfer system as normal cargo tanks, errors occur in practice by CBTs filled with oil.162

The second requirement imposed by MARPOL to ensure safe oil transportation is the double-hull requirement. Although this requirement is mainly focused on limiting oil pollution following accidents, it is nonetheless one of the best-known technical requirements. According to Regulation 19, Section 3 Annex I, the entire cargo length shall be protected by ballast tanks or spaces other than tanks that carry oil, including the bottom. The use of single hull tankers and the risks it brings when an accident occurs was highlighted in 1989 by the Exxon Valdez disaster in Alaska, in 1999 by the sinking of the tanker Erika and in 2003 by the Prestige oil spill.

In 1992, resolution MEPC.52(32) introduced Regulations 13F and 13G (today Regulations 19 and 20) of Chapter 4, Annex I in the aftermath of the Exxon Valdez disaster. Both regulations stated that all oil tankers of 5,000 tons deadweight and above delivered on or after 6 July 1993 must have a double hull or alternative construction. Other ships not falling under this regulation were the subjects of an intensive phasing out plan with the ultimate objective to displace all single hull tankers by 2026. However, this plan was soon adapted following the Erika disaster. After this disaster, the EU took unilateral actions by adopting Regulation 417/2002/EC and prohibiting all single hull tankers in EU ports after 2015 instead of 2026. Because of the large EU market in oil and bulk products, the IMO had to adopt the initial phasing out plan. However, this was again altered following the Prestige oil

                                                                                                               160 The COW method has already been explained supra Subsection 1.3.2, but will be discussed again in this Section for reading purposes. 161 D. KROKHMAL, “Inert-gas systems”, British Maritime Technology 1986, trid.trb.org/view.aspx?id=429547. 162 F. MAES, Internationaal & Europees recht, Gent, not published, 2009, 143.

11. © IMO

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spill and the adoption of Regulation 1726/2003/EC, which stated that all single hull tankers must be eliminated before 2010. With the unilateral legislative actions by the EU, MARPOL was adapted two times, even though the EU is not a member state of the MARPOL convention. This had never been seen before in international law. C. The Oil Record Book Apart from constructional and technical obligations, administrative obligations are adopted as well. Member states must comply with four obligations: firstly, to maintain an Oil Record Book, secondly, the drafting of a Shipboard Oil Pollution Emergency Plan (SOPEP), thirdly, the implementation of a Safety Management System (SMS), and fourthly, the obligation to report on incidents involving harmful substances. Because this thesis focuses on the key elements of the legislation, only the Oil Record Journal will be discussed in this paragraph. The Oil Record Book consists of two parts: part one deals with machinery space operations (Regulation 17 Annex I) while part two handles the cargo/ballast operations (Regulation 36 Annex I). Every ship of 400 GT and above and every oil tanker of 150 GT and above is obliged to maintain part one. The Oil Record Book shall be always updated when any of these five operations occurs during the voyage of the vessel: (1) ballasting or cleaning of fuel tanks; (2) discharge of dirty ballast or cleaning water from fuel tanks; (3) collection and disposal of sludge or (other) oil residues; (4) discharge overboard or disposal otherwise of bilge water which has been accumulated in machinery spaces; and (5) bunkering of fuel or bulk lubricating oil. Also, cases of a failure of oil filtering equipment will be recorded in the Oil Record Book. In cases of accidental or ‘exceptional’ discharges, the Oil Record Book has to be updated. The phrase ‘exceptional discharge’ clearly indicates a catchall category of discharges, intended to cover all discharges other than those explicitly permitted by MARPOL standards (Regulation 17, section 3 Annex I). Only oil tankers of 150 GT and above are obliged to maintain part two. The Oil Record Book shall be updated when oil is loaded or unloaded as cargo, when tanks are cleaned, in case of ballast water operations, when polluted ballast water is discharged or when slop tanks residue is disposed of. Similar to Part I, any failure of the discharge monitoring and control system shall be noted in the Oil Record Book. The Oil Record Book is one of the most important tools to verify if a vessel is responsible for illegal operational oil pollution. When the Oil Record Book is maintained properly, member state authorities can easily verify if the type of oil discharged into the ocean matches with the type carried or used as fuel by the suspected tanker. Also, the data from the Oil Record Book is applicable as evidence in further proceedings when the captain verifies the documents. D. Discharge limitations and special areas Next to the constructional and administrative obligations, the limitations to the actual discharge of oil or oily mixtures are one of the core elements of the MARPOL, having a direct effect on the marine ecosystem. Because these rules are location-based with a division between special areas and non-special areas, flexible adaptations can be made to protect certain marine regions. Next to the location-based distinction with regard to discharge rules, a distinction between the types of ships is also made. On the one side, there are rules applicable on all ships, on the other side, there are rules applicable only on oil tankers. In principle, all discharges of oil and oily mixtures such as ballast or bilge water are prohibited, unless a certain set of conditions are satisfied. In Annex I, special areas are defined as: “a sea area where for technical reasons in relation to its oceanographic and ecological condition and to the particular character of its traffic the adoption of special mandatory methods for the prevention of sea pollution by oil is required” (Regulation 1, section 11 Annex I). A number of designated areas are adopted in the first annex such as the areas around the

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Mediterranean Sea, the Baltic sea, the Black Sea, the Red Sea, the Gulfs, the Gulf of Aden, the Antarctic, the North West European waters and the Oman area of the Arabian Sea. Table 3 below gives a comprehensive overview of the different discharge limitations in Annex I. The special areas in the table refer to the areas mentioned above, unless stated otherwise. Table 3: Marpol, Annex I discharge limitations for oil and oily mixtures Type of ship Discharge outside special areas Discharge in special areas All ships of 400 GT and above

Discharge prohibited unless 1. the ship is proceeding en route 2. the oily mixture is processed

through an oil filtering equipment 3. the oil content of the effluent

without dilution does not exceed 15 ppm

4. the oily mixture does not originate from cargo pump-room bilges on oil tankers

5. the oily mixture, in case of oil tankers, is not mixed with oil cargo residues

Discharge prohibited unless 1. the ship is proceeding en route 2. the oily mixture is processed through

an oil filtering equipment 3. the oil content of the effluent

without dilution does not exceed 15 ppm

4. the oily mixture does not originate from cargo pump-room bilges on oil tankers

5. the oily mixture, in case of oil tankers, is not mixed with oil cargo residues

All ships of less than 400 GT

Discharge prohibited unless 1. the ship is proceeding en route 2. the ship has in operation equipment

of a design approved by the Administration that ensures that the oil content of the effluent without dilution does not exceed 15 ppm

3. the oily mixture does not originate from cargo pump-room bilges on oil tankers

4. the oily mixtures, in case of oil tankers, is not mixed with oil cargo residues

Discharge prohibited Except when oil in effluent without dilution does not exceed 15 ppm Special area is limited to the Antarctic area

All oil tankers Discharge prohibited unless 1. the tanker is not within a special

area 2. the tanker is more than 50 nautical

miles from the nearest land 3. the tanker is proceeding en route 4. the instantaneous rate of discharge

of oil content does not exceed 30 litres per nautical mile

5. the total quantity of oil discharged into the sea does not exceed 1/15,000 (for ships delivered on or before 31/12/1979) and 1/30,000 (for ships delivered after 31/12/1979) of the total quantity of the particular cargo of which residue formed a part

Discharge prohibited Except clean or segregated ballast

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E. Circumventions and motives Although these discharge limitations provide clear guidelines for discharging oil and oily wastes and are adopted in order to protect the marine environment, circumvention of these regulations is still common practice. Vessels often use flexible rubber hoses to ‘bypass’ the oily-water separator and oil content monitor, hard bypass pipes and tricking of the oil content monitor by discharging fresh water so the monitor only registers clean water when it actually contains oil. Discharges at night, through sewage systems (the so called black water-technique) and through cross connections to the ‘clean’ ballast water system. Although actions are taken to prevent the use of these techniques by criminalization of this conduct, the widespread practice indicates that more action is needed to tackle these forms of MARPOL circumvention.163 Two types of motives to conduct these actions can be distinguished: financial motives and corporate structure.164 The first financial motive is the cost saving motive: the savings of costs to offload waste in port, saving of maintenance costs, saving of equipment costs such as the replacement of oil filters or other spare parts. The second motive is more subtle: the owner or cooperation simply fails to provide a budget for environmental compliance or there is no budget for vessel crew training. Sometimes the wages of officers depend on the costs of vessel operations. Lower vessel operation costs means higher wages. Also, the failure to update old or broken equipment sometimes causes illegal discharges. However, the most significant cause of illegal operational oil pollution is the corporate culture. Today, there is no environmental-friendly corporate culture, especially in large industry corporations. In order to change this attitude, the company must make clear to vessel operators that it values the environment as much as it values the ship getting from point A to point B. To make this clear to corporations, employees, officers and crewmembers is not something done overnight. It is therefore vital that environmental compliance policies focus at changing the corporate attitude towards environmental protection.

3.2.1.3. Annexes II-VI

Apart from Annex I, five other annexes aim at the reduction of pollution from various sources. As mentioned earlier, participation in Annexes I and II is mandatory, thus falling under the category of ‘generally accepted international rules and standards’ prescribed by UNCLOS. However, participation in Annexes III-VI is substantial. In 2007, the merchant tonnage participation rate was 94% for Annex III, 75% for Annex IV, 96% for Annex V, and 74% for Annex VI.165 Annex II sets out measures to control the input of noxious and liquid substances carried in bulk.166 After a revision of the annex in 2007, four categories lay out the different discharge limitations. Category X bundles the most dangerous substances whose discharge is completely prohibited. Substances in categories Y and Z are less dangerous and can be discharged depending on the location and certain circumstances. Substances in the last category ‘other substances’, are harmless and can be discharged at all times. However, apart from discharge limitation measures, constructional obligations are defined as well such as the double hull requirement for chemical tankers. Annex III provides rules to limit the pollution of harmful substances in packaged form. This includes provisions concerning packaging, marking, labelling, documentation, stowage and quantity limits. To

                                                                                                               163 R.A. UDELL, “United States Criminal Enforcement of Delibarete Vessel Pollution: A Document-Based Approach to MARPOL” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Marinus Nijhoff Publishers, 2010, 271. 164 R.A. UDELL, ibid., 272-273. 165 P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 404. 166 D.R. ROTHWELL and T. STEPHENS, The International Law of the Sea, Oxford, Hart Publishing, 2010, 350-351.

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define the ‘harmful substances’, MARPOL refers to the International Maritime Dangerous Goods Code as first adopted by the IMO in 1965 and subsequently amended.167 Pollution from sewage is addressed in Annex IV. This annex applies to all ships of 400 GT and above undertaking international voyages or that are certified to carry more than 15 persons. All ships need to be equipped with a sewage treatment plant, a sewage disinfecting and treatment system or a sewage holding tank in order to limit the need and the hazard level of sewage discharges. Next to the equipment measures, sewage releases are limited as well. Discharges within 3 NM off the coast are prohibited, discharges between 3 NM and 12 NM off the coast are allowed under certain strict circumstances such as a treatment of the sewage. Untreated sewage can be released freely if that release takes place beyond the 12 NM zone. Ports are required to install sewage reception facilities accommodated to the amount of ships so no undue delay is caused. Annex V deals with the pollution from ship garbage, such as food and domestic and operational refuse generated during normal operation of the ship. While this is allowed but limited, other forms of garbage such as plastics are strictly forbidden to dispose. Lining, package and dunnage materials that will float are allowed to be discharged, however, only as far as practicable from the nearest land and outside a 25 NM zone from the nearest coast. In this annex, special areas are defined as well where discharges other than food wastes are completely prohibited. The last annex tries to tackle the negative effects of air pollution from ships.168 Annex VI is specifically aimed at diminishing the emission from sulphurous oxide, nitrous oxide, and the release of ozone depleting substances. Because of the low quality of fuel used in the engines of ocean-going vessels, air pollution from sulphurs and nitrates contributed largely to the atmospheric deposition and thus pollution of oceans. Annex VI was added in 1997 and has been adapted recently in 2010 to put stricter emission limits on sulphurous and nitrous oxide emissions.

3.2.1.4. Certificates

Article 5 of the MARPOL convention states that every ship sailing under the authority of a member state to the convention must carry the necessary certificates as prescribed by the annexes under which the ship falls. In Annex I, every ship shall hold the IOPPC after duly and periodic inspections by the flag state (Regulation 4 Annex I). This certificate must be accepted by the other member states and has the same value as the certificates issued by them. However, not only the flag state is authorized to inspect if the IOPPC is still valid: under the MARPOL provisions port states have this authority as well (Article 5, (2) MARPOL). All ships of 400 GT and above and all oil tankers of 150 GT and above are required to hold an IOPPC. Only when the vessels have been duly inspected, an IOPPC will be issued by the flag states. There are four ways of rendering the IOPPC invalid: firstly, when the certificate expires after five years, secondly, when the necessary inspections are not carried out on the indicated time intervals, thirdly, when there were substantial constructional changes or changes with regard to the equipment on board of the vessel without the permission of the flag state, and fourthly, when the vessel has changed nationality and falls under the jurisdiction of a different flag state, without updating the certificate.

                                                                                                               167 See also M.D. GÜNER-ÖZBEK, The carriage of Dangerous Goods by Sea, Berlin, Springer-Verlag, 2008, 350 p. 168 D.R. ROTHWELL and T. STEPHENS, The International Law of the Sea, Oxford, Hart Publishing, 2010, 351.

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Port states are authorized to inspect the necessary certificates but are limited to verifying if the IOPCC is on board, unless there are “clear grounds for believing that the condition of the ship or its equipment does not correspond to substantially with the particulars of that certificate” (Article 5, (2) MARPOL). Additionally, further inspections are allowed when the duly authorised officers of the port state have “clear grounds for believing that the master or crew are not familiar with essential shipboard procedures relating to the prevention of pollution by oil” (Regulation 11, Annex I). When this situation occurs, port states authorities must not allow ships to sail unless they can do it without presenting an unreasonable threat of harm to the marine environment. However, the port state may grant a ship permission to leave the port only for the purpose of proceeding to the nearest appropriate repair yard available. When repairs are not necessary but a violation was determined, the ship must be reported to the flag state for appropriate action or prosecuted for any violation of the port state’s own law which arises from non-compliance with the convention.169 In any event, port states cannot unduly delay ships.

3.2.1.5. Enforcement

Enforcement is carried out by flag states, port states and coastal states.170 The diminishing of the exclusive jurisdictional power of flag states marked an important development within the maritime law practice. A. Flag States In MARPOL, flag states have the duty to regulate and to enforce (Article 4 MARPOL).171 The duty to regulate consists of adopting laws relating to pollution control, including adequate penalties to any violation, which are applicable to their registered vessels. The duty to enforce comprises the reaction to any violation and to start criminal proceedings where necessary. Sanctions must be equally severe, irrespective of the location of the violation. Also, as already mentioned above, flag states have the duty to inspect and survey their ships to examine the structure, equipment, systems, fittings, and arrangement of the vessel. Enforcement is allowed, not only in the ports or territorial waters of the flag state, but on the high seas as well. B. Port States When a vessel is voluntarily within a port or at an offshore terminal of a state, that port state mey take investigations and eventually institute proceedings (Art. 5 and 6 MARPOL). The core element of port state enforcement lies in the certification system implemented by MARPOL and mentioned earlier in Paragraph 3.2.1.4. In principle, this port state control on the validity of the IOPPC is the most efficient method for detecting violations of the MARPOL regime.172 This is because all ships, regardless of their flag, have to call at ports to load or unload cargo and supplies otherwise ships cannot function. This also implies that vessels from states, which are not party to the convention, will have to implement these measures to call at ports of member states (Article 5, (4) MARPOL). By indirectly broadening the scope of MARPOL, its rules and regulations are applicable to 100% of the merchant tonnage. In order to decrease the number of vessels evading port state controls by only calling at ports where inspections are lax, several Memoranda of Understandings (MoU’s) are negotiated on regional levels to ensure port state protection, such as in Europe and the North Atlantic (the Paris MoU), Asia and the Pacific (Tokyo MoU), Latin America (Viña del Mar Mou), and the Mediterranean (Mediterranean                                                                                                                169 P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 406. 170 D.R. ROTHWELL and T. STEPHENS, The International Law of the Sea, Oxford, Hart Publishing, 2010, 353-355. 171 Ibid., 353. 172 Ibid., 354.

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MoU). Due to these actions, the number of inspections carried out is considerable. In 2010, 24,000 inspections were conducted by the Paris MoU member states, a decrease of 0.5% compared to 2009.173 This resulted in the detection of 84,000 deficiencies and gave rise to nearly 800 detentions. The worst performing states were North Korea, Libya, Togo, and Sierra Leone, while the best performing states were Bermuda, Germay, the United Kingdom, and the Netherlands. This suggests that more action need to be taken in order for flag states to take up their responsibilities. Fortunately, most detentions were of dry cargo, which pose a lesser risk to the marine environment. On 1 January 2011, the Paris MoU implemented the New Inspection Regime (NIR).174 This regime will enhance the PSC focus and reward quality shipping. High risk ships will be subjected to expanded inspections every 6 months. Ships with three or more detentions will be banned for a minimum period of 3 months. Quality ships will be rewarded with longer inspection intervals to encourage compliance. The main purpose of the NIR is to align the inspection regime with the new EU Directive on Port state Control and national legislation of the Paris MoU member states.175 The NIR was developed in cooperation with the EU and the Paris MoU member authorities, with a significant contribution from EMSA. The United States, unlike Canada, is not a party to the Paris MoU and has not implemented any kind of PSC in United States ports. C. Coastal states Any violation of the MARPOL provisions in the maritime area of jurisdiction of a coastal state shall constitute a violation of its national laws, regardless the nationality of the ship. The coastal state is allowed to enforce its laws and institute proceedings in order to convict the offender, or inform the flag state of the incident. (Art. 4 MARPOL). Generally the coastal state initiates proceedings under their own laws and informs the flag state they have done so.176 3.2.2 UNCLOS

UNCLOS III (hereafter LOSC) is the primary legal document for the prevention and limitation of operational oil pollution.  177 This overarching marine legal framework convention provided a shift in the way governments and industries approach dumping and pollution.178 Before LOSC, it was generally accepted that dumping and operational pollution was allowed, unless certain restrictions applied. Since 1982, dumping and operational pollution are principally prohibited, but allowed under certain conditions. A total of 162 have signed and ratified the LOSC, including the Bonn Agreement Contracting Parties and the EU. 18 Countries have signed, but not ratified and 16 countries have not signed nor ratified, including the United States. However, the convention is widely regarded as customary international law in the United States.179

                                                                                                               173 PARIS MoU, Annual Report 2010, parismou.org/Publications/Annual_report/#. 174 PARIS MOU, “Paris MoU Inspection Regime launched in 2 weeks time”, Press Release, 14 December 2012. 175 Directive of the European Parliament and of the Council No. 2009/16/EC, 23 April 2009 on port State control, OJ.L. 28 May 2009, ed. 131, 57. In force 17 June 2009. 176 OSPAR COMMISSION, North Sea Manual on Maritime Oil Pollution Offences, Publication No. 405/2009, Last updated: 18/06/2010, 17. 177 D.R. ROTHWELL and T. STEPHENS, The International Law of the Sea, Oxford, Hart Publishing, 2010, 355-358. 178 Ibid., 342. 179 M. SOCARRAS, “Costumary International Law and the Law of the Sea in U.S. Courts”, Presentation to the NOAA Law of the Sea Convention Working Group, 24/05/2011, lib.noaa.gov/about/news/Socarras_05242011.pdf.

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Part XII is the core part of LOSC dealing with “protection and preservation of the marine environment”, but the duty to protect is cited throughout several articles in the Convention as well, including the preamble, which states in the fourth consideration: “Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, and the study, protection and preservation of the marine environment”. When looking closely to this formulation, the ecological purpose of the LOSC is twofold: on the one hand, it is important to achieve an equitable and efficient utilization of the living and non-living marine resources, on the other hand, the convention aims to preserve these marine resources and its biodiversity. These two goals are also found in Article 1, Section 1, (4), which gives a general definition of marine pollution: “[…] the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities”. The following will focus on the LOSC legal framework to preserve the marine resources and ecosystem as formulated in part XII. Article 192, the first article of this part, establishes this duty for all states party to the convention. This duty can be divided into two obligations for states: the duty to adopt rules to preserve and the duty to enforce these rules by detecting and prosecuting offenders. Prevention and enforcement can be carried out by three states, instead of two competent states in the MARPOL convention: flag states, port states and coastal states. In practice, port state control has been the most important tool for the implementation and compliance to anti-pollution laws.180

3.2.2.1. Flag States

Since the introduction of the legal concept of flag states, these states always had the primary jurisdiction over these ships. This was not changed in the LOSC, but the latter brought a radical change in the exclusivity of flag state jurisdiction. 181 The sole purpose of the convention is to harmonise the exercise of flag state jurisdiction concerning the preservation of the marine environment. Article 211, Section 2 declares the following: “States shall adopt laws and regulations for the prevention, reduction, and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference”. Under generally accepted rules and standards, the LOSC aimed at conventions, attracting high participation, such as the MARPOL convention and all of its protocols and annexes. Other agreements, such as SOLAS, fall under this scope as well. It is, however, unclear when nascent conventions pass the LOSC threshold of becoming generally accepted. In this context the “competent international organization” will be the IMO. With regard to enforcement of these regulations by flag states, Article 217 provides a positive obligation. This obligation contains ensuring compliance, taking appropriate measures to prohibit non-compliant ships entering the high seas, to make sure all ships carry on board all necessary certificates

                                                                                                               180 A.K-J. TAN, Vessel-source marine pollution: the law and politics of international regulation, Cambridge, Cambridge University Press, 2006, 230-285. 181 P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 413.

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and the provision of immediate investigation and institution of proceedings where appropriate in respect of the alleged violation.

3.2.2.2. Port States

On the basis of Article 211, Section 3, port states can establish particular requirements for the prevention reduction and control of pollution as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their offshore terminals. However, port states are obliged to give due publicity to such requirements and have to communicate them to “the competent international organization”, which will again be the IMO. Regulations also need to be in coordination with other coastal states and cannot hamper the fundamental marine rights such as the right of innocent passage. Article 218 gives the right to port states to enforce the abovementioned regulations. Port state enforcement consists of investigating possible violations and collecting evidence, which can lead to the institution of proceedings in the port state. This ability was greatly extended in 1982 whereas before, enforcement was only possible for vessels in breach of port state regulations within the port itself, the internal waters, the territorial sea or, the EEZ itself. This new universal Port state jurisdiction allows enforcement when vessels are in breach of national and international rules and standards, regardless of the location of the breach and nationality of the vessel. This implies an indirect jurisdiction over ships in foreign internal, territorial, and EEZ waters and on the high seas. With regard to the high seas, the Permanent Court of International Justice, in the Lotus Case, first confirmed this international principle in 1927.182 Despite the declaration, no state, except the flag state, may exercise jurisdiction over vessels sailing the high seas. Port states are allowed to enforce regulations once the ship has voluntarily entered their ports. The Lotus Case hereby provides the judicial basis for Article 218 LOSC. However, port states can only initiate proceedings for violations occurred in foreign waters, expect the high seas, when requested by that state, the vessel’s flag state, or the state which is or will be damaged or threatened by damage following the violation. In this context, it is also useful to mention the measures that can be taken by port states relating to “the seaworthiness of vessels to avoid pollution”, as is laid down in Article 219 LOSC. When states have ascertained, upon request or on their own initiative, that vessels are in violation with the applicable international rules and standards of seaworthiness and hereby threatening the marine environment, administrative measures can be taken to prevent the vessel from sailing. When this situation occurs, the vessel cannot leave port unless due operations have been carried out.

3.2.2.3. Coastal States

The jurisdictional regime of coastal states was significantly broadened in the LOSC. Because of the introduction of the EEZ regime, coastal states gained more rights over the living and non-living resources in this new 200 NM-zone. However, the rights of EEZ states are limited to prevent ‘creeping jurisdiction’, which means seizing more rights than allowed under the LOSC. Coastal states have jurisdiction over three areas of water: the internal waters, the territorial waters, and the EEZ. The internal waters fall within the sovereign territory of a state, which gives complete control over pollution prevention and detection. The only exception to the freedom of regulation by these states, is the right of innocent passage as stated in Article 8, Section 2 LOSC. In territorial waters the adoption of marine preservation and pollution prevention is allowed under Article 21,

                                                                                                               182 Permanent Court of International Justice (PCIJ), France v. Turkey, 7 September 1927, Ser. A., No. 10, 169; P. BIRNIE, A. BOYLE and C. REDGWELL, International law and the environment, Oxford, Oxford University Press, 2009, 401.

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Section 1, (f) LOSC. However, legislation relating to design, construction, and manning or equipment of foreign ships is not allowed unless giving effect to generally accepted international rules and standards. In the EEZ, the competence to enact environmental protection measures is much more limited, yet broadened compared to the pre-UNCLOS III legal regime. The basic article in this context is 211, Section 5, which permits states to adopt laws for the prevention, reduction, and control of pollution. These laws must confirm and give effect to the generally accepted international rules and standards established in the IMO. This indicates that the ability to regulate is not unlimited: all laws must be in conformity with IMO measures and more stringent rules are not allowed. This was confirmed by the IMO Secretary-General who noted the prohibitions imposed by France, Portugal, and Spain on single-hull super tankers did not fall under Article 58 LOSC.183 Article 211, Section 6 LOSC serves as an exception for coastal states to adhere their laws to international standards. Two exceptions apply: firstly, situations where special circumstances require adapted regulations, and secondly, in areas that are covered in ice (Article 234 LOSC). The first exception is targeted at areas “to be protected on environmental grounds through measures which imply restrictions on international shipping”. 184 One example of such an area is the Baltic Sea. Because of a lack of ocean water influx, there is a particularly slow exchange of fresh water, a situation that is can also be seen in the Mediterranean Sea. When normal international rules fail to address the needs of these special areas, often called Particularly Sensitive Sea Areas or PSSA’s, coastal states are permitted to adopt special mandatory measures for the prevention of pollution after due consultations and communications with the IMO. However, no laws relating to the design, construction, and manning of equipment standards shall be adopted other than those laid down in international rules. The second exception concerns areas where severe climatic conditions and the presence of ice covering these areas create obstructions or exceptional hazards to navigation and pollution, which could cause major harm or irreversible disturbance. Additional stringent laws can in this situation be adopted based on the best available scientific evidence. Enforcement by coastal states in the LOSC has been broadened as well, but is not unlimited. Three situations can be distinguished in Article 220 LOSC. The first situation is described in Section 1 and gives the authority to the coastal state to enforce international and national pollution laws when the pollution occurred in its territorial sea or its EEZ where the ship is within a port or an offshore terminal of that state. The second situation is laid down in Sections 2 and 3 and allows coastal states to intervene when the authorities have clear grounds to believe a vessel navigating the territorial sea or EEZ has violated the applicable pollution laws. The third situation can be found in Section 5 and 6 and relates to a violation of pollution laws causing or threatening significant pollution of the marine environment in the territorial sea or the EEZ. When there are clear grounds such a situation has occurred, the coastal authorities are permitted to intervene. In the first situation, the coastal state can enforce by instituting proceedings against the vessel. In the second and third situations, the state has more tools at its disposal. Depending on whether the

                                                                                                               183 See UN GENERAL ASSEMBLY, Report of the Secretary-General on the Oceans and the Law of the Sea, UNCLOS, 2003, UN Doc A/58/65, 21. 184 A. BLANCO-BAZÁN, “The IMO guidelines on Particular Sensitive Sea Areas (PSSAs): Their possible application to the protection of underwater cultural heritage”, Mar. Policy 1996, 342-349; L. JOHNSON, J. ROBERTS, M. TSAMENYI and T. WORKMAN, “The Western European PSSA Proposal: A ‘Politically Sensitive Sea Area’”, Mar. Policy 2005, 431-440.

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pollution was located in territorial waters or the EEZ, the state can undertake physical inspections and/or institute proceedings where evidence so warrants, including the detention of the vessel. The vessel can also be required to provide relevant information about its course and the last and next port of call. Next to the limitation of the enforcing powers of coastal states, further limitations can be found in Articles 224 and 225 LOSC, which state only officials, warships, military aircrafts, and other clearly marked government ships and aircrafts can investigate foreign ships. Also, the exercise of enforcing powers cannot endanger the safety of navigation or create a hazard to the foreign vessel or the marine environment in any way. 3.2.3 SOLAS Convention

Although in principle not aimed at marine pollution, the SOLAS convention contains technical safety measures, which are complementary to the MARPOL provisions, such as the obligation for vessels to be fitted with the AIS.185 Additionally, due to the environmental status of some specific areas, the SOLAS convention regulates the access of certain types of ships to special operating areas. The convention consists of twelve Chapters, one appendix and four annexes. The Maritime Safety Committee (MSC) is responsible for the discussion and adoption of amendments. One of the most important introductions made by SOLAS in the context of marine pollution are the vessel inspection regulations. Regulation 1 of Chapter XI ‘Special measures to enhance marine safety’, authorizes recognized organizations to inspect ships commissioned by the vessel’s flag state. Regulation 4 of the same Chapter gives the authority to port states to control the operational requirements of the vessel relating to the safety of ships and pollution prevention.186 Also, with the introduction of the International Safety Management Code (ISM Code), new rules were adopted to avoid damage to the environment, such as rules regarding the maintenance of the ship and its equipment, the issuing of a Safety Management Certificate and regular inspections of the vessel.187 Due to the 1988 protocol, SOLAS and MARPOL inspections were harmonized.188 Before 1988, it could happen that a vessel passed MARPOL inspections, but failed SOLAS inspections six months later. However, in order to enter into force, at least 15 member states who represent 50% of merchant tonnage must ratify these amendments. Pending the formal entry into force of the protocol, the IMO adopted two resolutions to allow an early adoption of the harmonized system.189 3.3 Regional instruments Next to the international regulations imposed by MARPOL, UNCLOS, and SOLAS, new protective regulations are adopted through regional cooperation as well. In some cases, regional instruments can influence and adapt the international instruments.190

                                                                                                               185 See supra Section 2.5. 186 IMO, Procedure for the Control of Operational Requirements Related to the Safety of Ships and Pollution Prevention, Resolution A.742(18), 4 November 1993. 187 IMO, International Management Code for the Safe Operation of Ships and for Pollution Prevention, Resolution A.741(18), 4 November 1993. 188 F. MAES, Internationaal & Europees recht, Gent, not published, 2009, 135-136. 189 IMO, Early Implementation of the Harmonized System of Survey and Certification, Resolution A.718(17), 6 November 1991, as complemented by Resolution A.745(18), 4 November 1993. 190 See supra Paragraph 3.2.1.2.

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3.3.1 EU

Since the Erika and Prestige disasters, the EU has been at the forefront to combat vessel-source marine pollution.191 By enacting community legislation following the disasters, the EU influenced MARPOL regulations without being a party to the convention. The EU is a member to the LOSC, which is viable due to the possibility of a membership status for regional organizations (Article 305 LOSC). 192 Because all EU member states have independently ratified the LOSC as well, the convention has a ‘mixed’ status under EU law. Next to the accession of the EU and its member states to UNCLOS, the European Court of Justice (ECJ) has also ruled that UNCLOS forms an integral part of the EU legal order.193 The situation is different with regard to MARPOL, SOLAS, and other IMO treaties and conventions. Because only states can be party to the IMO, the EU enjoys merely an observer status (Article 4, CIMO).194 Although this situation does not necessarily poses a problem since the LOSC includes obligations to comply with generally accepted IMO rules and regulations, the ECJ has determined that the EU is not bound by MARPOL.195 This means the EU cannot legally oblige member states to comply with MARPOL. However, the EU made the Paris MoU, aimed at increasing the regional efficiency of MARPOL port state inspections in the North Sea and Northern-Atlantic region, binding by a 1995 EU directive, and took several other initiatives to increase compliance with the MARPOL regulations.196 After the Erika and Prestige disasters, the EU was of the opinion that the then applicable MARPOL rules concerning double hull tankers and criminal sanctions were inadequate to address the needs for a safe and clean environment.197 As a result, the EU took unilateral actions to improve this legal regime, such as the implementation of a phasing-out plan for single hull tankers, which in turn changed the MARPOL phasing-out plan.198 The EU also took action with regard to criminal sanctions for oil pollution violations by adopting Directive 2005/35/EC, followed by an agreement on Framework Decision 2005/667/JHA.199 The EU noted that violations were not fully covered by EU law and that the implementation by member states was variable, both in practice and in law.200 Therefore, the European Commission deemed it necessary to harmonize violation enforcement and clarify this legal regime in the EU legislative framework, which took effect with the adoption of the Directive and the Framework Decision. The main purpose of these two instruments is the transfer of enforcement for illegal vessel-source pollution to the EU level. By prescribing adequate, proportional, and effective sanctions with a

                                                                                                               191 N. LIU and F. MAES, “The European Union’s role in the prevention of vessel-source pollution and its internal influence”, JIML 2009, 411. 192 Council Decision No. 98/392/EC, 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof, OJ.L. 23 June 1998, ed. 179, 1. 193 ECJ, 3 June 2008, C-308/06. 194 Convention on the International Maritime Organization (Geneva) 289 UNTS 48; UKTS 54 (1950) Cmnd. 589; 53 AJIL (1948) 516. In force 17 March 1958. 195 ECJ, 3 June 2008, C-308/06. 196 Council Directive No. 95/21/EC, 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control), OJ.L. 7 July 1995, ed. 157, 1. 197 N. LIU et al., ibid., 420-421. 198 See supra Paragraph 3.2.1.2. 199 Framework Decision No. 2005/667/JHA, 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, OJ.L. 30 September 2005, ed. 255, 164. 200 N. LIU and F. MAES, “The European Union’s role in the prevention of vessel-source pollution and its internal influence”, JIML 2009, 421.

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universal effect in the EU, enforcement will be more efficient and the number of violations will decrease. Although these Union decisions were a step in the right direction, a lot of criticism was voiced by the shipping industry, and eventually, the ECJ annulled Framework Decision 2005/667/JHA because the Council lacked the necessary competences to enact this decision. The Commission, with the adoption of Directive 2009/123/EC which replaces the annulled Framework Decision and amends Directive 2005/35/EC, soon repaired this legal lacuna. It is important to note that the abovementioned instruments only deal with sanctions and not with the detection of these violations. The European Commission acknowledged in the 10th consideration of Directive 2005/35/EC that further cooperation between member states was needed to this effect. However, the directive lists ‘accompanying measures’, which are aimed at supporting the functioning of the directive by encouraging cooperation among member states and EMSA to detect violations. In Article 10, Section 2, (a), the directive specifically mentions satellite monitoring and surveillance as one of the ‘accompanying measures’. In order to support the legal initiatives following the Erika and Prestige oil spills, the EU founded the European Maritime Safety Agency (EMSA) with the adoption of Regulation 1406/2002.201 EMSA is responsible for three key tasks with regard to operational oil pollution prevention and detection (Article 2 Regulation 1406/2002). Firstly, EMSA will provide technical assistance to the Commission during the preparatory works of new legislations aimed at increased maritime safety and prevention of pollution. Secondly, EMSA has the task to monitor the overall function of the EU port state control regime. Thirdly, EMSA will enhance cooperation with the member states to increase the detection of violations and will provide technical assistance to national authorities for the implementation of EU legislation. This last task was repeated in Directive 2005/35/EC, Consideration 10 and is now materialized with the founding of CleanSeaNet.202 Other initiatives include the installation of the Global Monitoring for Environment and Security (GMES), the European Group of Experts on Satellite Monitoring of Sea-based Oil Pollution (EGEMP), and the Joint Research Center (JRC). The basic purpose of GMES is to provide updates on environmental issues, especially with regard to climate change, by using remote sensing data in order to allow policy makers and public authorities to access this information for policy decisions. 203 Its principle source of information is collected by RADARSAT.204 All GMES satellite data is transferred from the Kongsberg Satellite Services (KSAT). This commercial company, with the help of the Norwegian Space Center, provides ground station services, which are used to receive satellite data signals. Because of the strategically positioned ground stations, KSAT can supply access to satellite data from both the Arctic and the Antarctic.205 The EMSA CleanSeaNet, as a recognised GMES service, uses KSAT oil pollution satellite data. In addition, the EMSA has access to additional radar and optical satellite imagery in case of an emergency due to the KSAT services.206 One of the projects supported by GMES was the MarCoast project. This oil spill monitoring system was mainly aimed at defining an oil spill confidence

                                                                                                               201 Regulation of the European Parliament and of the Council (EC) No. 1406/2002, 27 June 2002 establishing a European Maritime Safety Agency, OJ.L. 5 August 2002, ed. 208, 1. 202 See also supra Section 2.2. 203 GLOBAL MONITORING FOR ENVIRONMENT AND SECURITY (GMES), GMES in brief, 2012, gmes.info/pages-principales/overview/gmes-in-brief/. 204 ESA, “ESA declares end of mission for Envisat”, 9 May 2012, esa.int/esaCP/SEM1SXSWT1H_index_0.html. 205 KSAT, Maritime Monitoring: KSAT – oil spill detection service, Brochure, 2012, ksat.no/sites/default/files/Oil%20spill%20detection%20%20folder%20original.pdf 206 EMSA, “What Emsa offers”, 2012, cleanseanet.emsa.europa.eu/About/EMSA_offers.html.

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classification scheme in order to validate possible oil slicks more quickly. 207 The higher the classification, the more likely the dark features on satellite images constitute an oil slick. However, this classification system is often used as an argument against the use of remote sensing images as evidence in court. When an image has a lower classification, it does not provide the legal certainty that evidence needs to judge offenders. The key tasks of the EGEMP expert group are to harmonize systems and to achieve a common approach to satellite remote sensing. The group also functions as a scientific advisory group to EMSA and CleanSeaNet.208 The JRC, which installed EGEMP together with the European Commission’s DG Environment, is a technical and scientific advisory unit to the European Commission, the European Parliament, and the EU member states. The Centre performs environmental research in seven scientific institutes in collaboration with profit and non-profit private organizations.209 3.3.2 Bonn Agreement

The Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances, signed in Bonn in 1983, is a unique regional agreement directed at collaboration and response to operational and accidental pollution by states bordering the Greater North Sea in order to comply with international instruments, including those under MARPOL.210

Originally, the Bonn agreement dates from 1969 in the aftermath of the Torry Canyon oil spills off the coast of Cornwall. 211 Its main purpose was to install a partnership to combat oil pollution. This partnership was extended in 1983 with the current agreement to combat not only oil but harmful substances as well. In 1989, the Bonn Agreement member states approved to coordinate aerial surveillance to monitor and detect illegal operational pollution. As of 2010, the Contracting states are: Belgium, Denmark, France, Germany, the Netherlands, Norway, Sweden, the United Kingdom, Ireland, and the EU. Spain has an observer status. The Contracting Parties hold meetings at regular intervals or in case of special

                                                                                                               207 B. BASCHEK, G. FERRARO, G. DE MONTPELLIER, O. NJOTEN, M. PERKOVIC and M. VESPE, “On the SAR derived alert in the detection of oil spills according to the analysis of the EGEMP”, Mar.Pollut.Bull. 25 August 2009, 5. 208 EUROPEAN GROUP OF EXPERTS ON SATELLITE MONITORING OF SEA-BASED OIL POLLUTION (EGEMP), At a glance, 2012, ipsc.jrc.ec.europa.eu/index.php/746/0 209 JOINT RESEARCH CENTER (JRC), At a glance, 2012, ec.europa.eu/dgs/jrc/index.cfm?id=1370. 210 See for more information bonnagreement.org/eng/html/welcome.html. 211 Agreement for cooperation in dealing with pollution of the North Sea by oil, adopted on 9 June 1969 (Bonn) 9 ILM 359 (1970). In force 9 August 1969.

12. © Bonn Agreement

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circumstances. In addition, ministerial meetings are held outside the Bonn Agreement framework to discuss long-term policies. The Bonn Agreement operational pollution monitoring system is based on two pillars: firstly, the detection pillar, and secondly, the pollution prevention pillar. The detection pillar consists of aerial and satellite surveillance over eleven zones of responsibility (Image 12). Every Bonn Agreement member state carries out flights with specialized aircraft to monitor their designated parts of the maritime area, either to fulfil obligations under the Bonn Agreement or for national purposes. Next to these national operations, the joint operations are conducted as well. 212 Three types of operations exist under the Bonn framework:

a. Tour d’Horizon (TdH) flights: these operations consist of monthly flights to survey the offshore area of the North Sea where oil and gas activities take place. These flights are executed by Belgium, Denmark, Germany, the Netherlands, and the United Kingdom.

b. Coordinated Extended Pollution Control Operations (CEPCO) flights: coordinated flights carried out by neighbouring countries with the purpose to survey areas with high traffic density during a short period (e.g., 24 hours).

c. Super-CEPCO flights: contracting parties, often in close cooperation with neighbouring non-party states, can decide to survey areas of high traffic density for a longer period of time (e.g., 10 days). In October 2010, a Super-CEPCO was organized by France with the support of the United Kingdom and lasted for 7 days.

In the past decade, more and more Bonn member states use satellites to support the aerial activities. For example, the Norwegian Pollution Control Authority (NPCA) has collaborated with the Tromso Satellite Station in order to install a near real-time oil spill monitoring service for their maritime area using CleanSeaNet ENVISAT and RADARSAT SAR data. The Tromso station provides oil spill information to the NPCA within one hour of satellite overpasses. Based on these figures, flights are coordinated according to the timing of satellite overpasses, taking into account flight-path deviation according to the information provided. The Netherlands North Sea Directorate and the British Maritime and Coastguard Agency (MCA) have similar detection systems as well.213 This monitoring system is complemented with an efficient transfer between member states of national programs for avoidance of or dealing with oil pollution, major pollution incidents, experiences in the use of surveillance means, and techniques and information of mutual interest derived form surveillance activities (Article 4 Bonn Agreement). To streamline detection on national and intergovernmental level, remote sensing policies are adopted within the Bonn Agreement framework. In Section 25.17 of the remote sensing policy document, satellite surveillance is regarded as the best appliance to provide early warning of possible spills together with their locations and dimensions. A follow-up by airborne surveillance can then verify the existence of the detected slick by human eye and provide more detailed information. To identify the offending vessel, the AIS, together with improved navigation (dGPS), is designated as a ‘very useful tool’ in Section 25.14. The second pillar, pollution prevention, aims at reducing the amount of pollution offences. This is materialized by visual presence of remote sensing aircraft, guidelines on the exchange of information and evidence, recommendations with regard to an integrated Pollution Reporting Systems, and close

                                                                                                               212 BONN AGREEMENT, Bonn Agreement Aerial Surveillance Program: Annual report on aerial surveillance for 2010, 2010, bonnagreement.org/eng/html/welcome.html. 213 ARTS & HUMANITIES RESEARCH COUNCIL, Satellite Monitoring as a Legal Compliance Tool in the Environment Sector, AHRC Report 21, 2012, ucl.ac.uk/laws/environment/satellites/docs/21_Oil_Pollution.pdf.

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cooperation with the OSPAR North Sea Network of Investigators and Prosecutors (NSN).214 Due to a strong focus on detection within the Bonn Agreement framework, pollution prevention is the least developed pillar. But with the adoption of new policies and action plans, more steps are being taken to enhance prevention. In addition to the monitoring and detection, the Bonn Agreement member states have agreed to set up a Working Group on Operational, Technical and Scientific Questions concerning Counter Pollution Activities (OTSOPA). Article 8 Bonn Agreement describes the main task of OTSOPA:

a. Execute the Work Program as established by the meeting of Contracting Parties; b. Facilitate the implementation of the Bonn Agreement by Contracting Parties through

operational, technical and scientific contacts and cooperation between representatives of Contracting Parties and, as appropriate, observers;

c. Report to the meeting of contracting parties on its activities. This is added to the responsibility for the implementation of factual updates of existing information in Bonn Agreement manuals, arrangements for all types of exercises and aerial surveillance activities, and arrangements for Research and Development collaboration within the Bonn Agreement framework. OTSOPA shall report all actions to the meeting of Contracting Parties, including those, which could have financial, legal, or political implications.215 On November 24, 2010, the first Bonn Agreement Ministerial Meeting was held in Dublin. Next to the Bonn member states, several observers from neighbouring regions and intergovernmental organizations attended. The main purpose of the meeting was to re-invigorate efforts to accomplish agreed objectives and to achieve better prevention, preparedness, and response to operational and accidental marine pollution. To materialize these objectives, the Bonn Agreement Action Plan (BAAP) was adopted, setting out the strategic aims and operational objectives for the period 2010-2013.216 In order to accomplish these aims and objectives, several actions are agreed upon in the BAAP. This includes the maintenance of an efficient Standard Reporting System to report detected pollution, to consider promotion of optimum use of AIS, to make optimum use of satellite images through CleanSeaNet in order to follow up to first alert of detection, and enhance coordination and cooperation with the NSN and the Bonn Agreement Oil Spill Identification Network. In a study conducted by the University of Leeds, trends in North Sea oil pollution for the period 1986-2004 were analysed.217 This study concluded that across the whole North Sea region, reductions were fixed despite a fourfold increase in the number of flight hours undertaken since 1986 and extensive improvements of technology, including the use of satellite remote sensing. This positive trend is still noticeable today. When comparing the total number of detected pollutions from 2008 and 2010, figures show a 33% drop, despite the same amount of flight hours both in daylight and darkness. The most remarkable conclusion is the spectacular decrease of 77% in detected oil slick volume. 218 This leads to the conclusion that the joint efforts by the Bonn Agreement member states play a very important part to decrease oil pollution and to increase protection of the North Sea marine                                                                                                                214 See infra Subsection 3.3.3. 215 Bonn Agreement, “OTSOPA: Bonn Agreement Working Group”, 2012, bonnagreement.org/eng/html/chairmen/terms.htm. 216 BONN AGREEMENT, Declaration of the First Ministerial Meeting of the Bonn Agreement (Dublin Declaration), 24 November 2010, endseurope.com/docs/101125b.pdf. 217 A. CARPENTER, “The Bonn Agreement Aerial Surveillance program: Trends in North Sea oil pollution 1986-2004”, Mar.Pollut.Bull. 2007, 149-163. 218 It is important to note that the data currently available do not allow reliable overall estimation of oil inputs. These estimates should therefore be interpreted as indicative and not totally accurate.

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environment. With the adoption of EU legislation on marine pollution sanctions and an enhanced framework to harmonize pollution enforcement, the Bonn Agreement efforts can also play a vital role in the prosecution of the detected offenders by collecting and transferring evidence between member states. 3.3.3 OSPAR Convention

The Convention for the Protection of the Marine Environment of the North-East Atlantic, drafted and signed in Paris in 1992, is the main anti-pollution convention for the North-East Atlantic region, including the North Sea. It combines and extends the scope of two previous conventions on dumping, signed in Oslo in 1972 and in Paris in 1974. 15 countries, including all Bonn Agreement Contracting Parties, and the EU have ratified the convention until now. Meetings are held once a year by the OSPAR Commission, composed of one representative of each of the Contracting Parties. In addition to the Contracting Parties, numerous international and regional organizations hold an observer status such as the IMO, the United Nations Environmental Program (UNEP), and the International Atomic Energy Agency (IAEA). OSPAR aims at the prevention and elimination of pollution from land-based sources, dumping or incineration, and from offshore sources. In addition, the convention provides regular assessments of the quality of the marine environment. These four objectives are drafted in four separate annexes. In 1998, at the first Ministerial Meeting of the OSPAR Commission, a fifth annex was adopted, which extends the cooperation of the Contracting Parties to cover all human activities that might adversely affect the North East Atlantic marine environment.219 Associated with the OSPAR Commission and Secretariat is the North Sea Network of Investigators and Prosecutors (NSN). Installed following the Fifth North Sea Conference held in Bergen, Norway in 2002, the NSN is responsible for the enforcement of international rules and standards to protect the marine environment from pollution by shipping. Because oil pollution evidence is often collected in a jurisdiction, other than in which the prosecution takes place, the NSN promotes the exchange of evidence and information between countries and informs state authorities on the requirements for the admissibility of evidence in other jurisdictions. This should improve the use of evidence to prosecute oil pollution offenders. The NSN works closely with the Bonn Agreement framework by organising joint workshops to identify and promulgate lessons learned from monitoring operations and oil pollution cases.220 In the diagram below, the relationships between the OSPAR Commission, the NSN, and the Bonn Agreement framework and OTSOPA are visualised.

13 © OSPAR Commission

                                                                                                               219 OSPAR COMMISSION, “The OSPAR Convention”, 2012, ospar.org. 220 OSPAR COMMISSION, “North Sea Network of Investigators and Prosecutors”, 2012, ospar.org.

Bonn Agreement Framework NSN OSPAR Commission

OTSOPA

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3.4 The United States counter oil pollution framework Since the 1926 Preliminary Conference on Oil Pollution of Navigable Waters, convened in Washington, the United States have long advocated to diminish oil pollution into the marine environment.221 Throughout the decades following the convention, several laws were adopted to protect the environment of which two are important in this context:

a. Clean Water Act 1972: This law was the most important instrument tackling, oil pollution by establishing requirements for oil spill reporting, response, and liability. The law also created a fund that could be used for cleanup and natural resource restoration.222

b. Deepwater Port Act (1974): this act addresses oil spills in deep water ports, together with issues of liability. This act also provides for a fund to compensate cleanup and pay damages above liability limits. The fund was financed by a per-gallon tax on oil. 223

However, after the Exxon Valdez oil spill, analysts and experts voiced criticism against the oil pollution prevention framework in the United States. With the adoption of the Oil Pollution Act in 1990 (OPA), this legal framework underwent a complete overhaul. 224 With this law, Congress consolidated the existing federal oil prevention laws under one program and expanded the existing liability provisions within the CWA. It also created new requirements regarding oil spill prevention and response and extended the legal framework to comply with the MARPOL regulations. In 2000, the Act to Prevent Pollution from Ships (APPS) was amended.225 This act implements the MARPOL Annex I regulations and applies to all US-flagged ships, and to all foreign ships sailing in US waters or at US ports. The principle agency responsible for the issuing and enforcing of the APPS, including the detection oil pollution through aerial remote sensing and port state controls, is the US Coast Guard. In the United States counter pollution framework, three methods are used to detect oil pollution: firstly, the remote sensing technique, secondly, the inspection-based detection, and thirdly, through whistleblowers.226 As in Europe, the United Sates conduct aerial and satellite remote sensing operations to detect spills using SAR, SLAR and UV/IR sensing techniques. Aerial remote sensing operations are carried out by US Coast Guard AIREYE aircrafts. These aircraft are similar to those used in Europe and have the same equipment on board.227 Satellite pollution detection is conducted by NASA’s Terra satellite.228 The very first criminal prosecution under the new OPA framework and using remote sensing evidence was in the United States v. Palm Beach Cruises case. During the 1991 proactive surveillance action called ‘Operation Overboard’, EPA and FBI special agents searched for oil pollution offenders using SLAR equipped Coast Guards jets.229 These SLAR images, together with videotapes and oil samples taken from the oil slick and on board the Panamanian flag cruise ship M/V Viking Princess, criminal charges were brought. Proceedings were concluded with a plea agreement for

                                                                                                               221 J.L. RAMSEUR, Oil Spills in U.S. Coastal Waters: Background and Governance, CRS Report for Congress, 11 January 2010, fas.org/sgp/crs/misc/RL33705.pdf. 222 Federal Water Pollution Control Act, adopted on 18 October 1972 (Washington) 86 Stat. 816 (1972) P.L. 92-500. In force 18 October 1972. 223 United States Deepwater Port Act, adopted 1974 (Washington) 88 Stat. 2131 (1975) P.L. 93-627. In force 3 January 1975. 224 United Sates Oil Pollution Prevention Act, adopted 18 August 1990 (Washington) PL 101-380, 101 HR 1465, 33 USC §2701 et seq. In force 18 August 1990. 225 United States Amended Act to Prevent Pollution from Ships, adopted on 29 December 2000 (Wahington) PL 106-580, 33 USC §§1905-1915. In force 29 December 2000. 226 R.A. UDELL, “United States Criminal Enforcement of Delibarete Vessel Pollution: A Document-Based Approach to MARPOL” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Marinus Nijhoff Publishers, 2010, 277-280. 227 See supra Section 2.3. 228 See supra Section 2.2 and 2.3 229 United States v. Palm Beach Cruises, S.D. Fla. 1996, 204 BR 548.

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Palm Beach Cruises, instituting a court supervised ‘effective compliance program’ designed in consultation with an independent environmental consultant.230 The second technique is based on inspections. This methodology has outgrown remote sensing detection to be the dominant technique for oil pollution detection the past ten years.231 Two essential elements are examined during the inspections: firstly, the pollution prevention equipment, and secondly, the Oil Record Book. Inspectors are trained to look for various ‘red flags’ that can indicate circumventions of regulations such as the scratched and chipped paint on overboard piping and flanges, which is one sign of dismantling or bypassing. Repainting of overboard pipes and flanges after every use are common signs of circumvention. Also, the inspection of the Oil Record Book proves to be extremely useful, especially when cross-referencing the information with equipment inspection results. The third detection process is based on reports from whistleblowers. 232 These are generally crewmembers that bring allegations to local authorities, attracted by the prospect of being rewarded with up to one-half of the criminal fines when their reports lead to conviction. In the United States v. Irka Maritime, S.A. case, the court ordered USD 250,000 to a second engineer who reported illegal discharges and falsified records to the US Coast Guard.233 The use of whistleblowers in court is generally recognized after the completion of a series of successful prosecutions. The United States Coast Guard’s efforts have brought considerable attention to the pollution problem. This leads to several companies making technical improvements and investing in APPS and MARPOL compliance. However, intentional pollution still occurs. This is primarily due to the fact that the chances of getting caught are generally low. In addition, penalties for violations are not viewed as sufficiently large to change vessel crew and operator’s attitude. Therefore, more action beyond the MARPOL framework is needed in the United States, similar to the Bonn Agreement framework and the EU Directive 2005/35/EC initiative. 3.5 Conclusion When evaluating the international, regional, and national frameworks for operational oil pollution, one important conclusion can be drawn, namely all regulations strongly concentrate on oil input prevention by detection and inspection. MARPOL provides the basic rules for discharge limitations, which are generally accepted today and have not been amended since their contemplation in 1973. In order to enforce these rules on the high seas, nearly all initiatives, such as the Bonn Agreement framework in Europe, the US Coast Guard inspection program and the extensive port and coastal state controls implemented by UNCLOS and MARPOL MoU’s, focus on inspection of vessels and detection of violations. In addition, some actions are being taken to enhance pollution prevention by tightening sanctions on violations, such as Directive 2005/35/EC.

                                                                                                               230 L.R. BLUMKIN, J.S. RAKOFF and R.A. SAUBER, Corporate Sentencing Guidelines: Compliance and Mitigation, Washington, Law Journal Press, 1993, §8,01[4], 8-12. 231 R.A. UDELL, “United States Criminal Enforcement of Delibarete Vessel Pollution: A Document-Based Approach to MARPOL” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Marinus Nijhoff Publishers, 2010, 277-280. 232 Ibid. 233 United States v. Irka Maritime S.A., W.D. WA. 2006, No. CR06-5661RBL.

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Although these efforts have decreased the amount of violations and the total input of oil, a strong legal framework for the prosecution of discharge violations is still lacking today.234 One of the main causes, the absence of efficient prosecution is the suspicious attitude from the legal sector, mainly judges and prosecutors, towards the use of remote sensing data in proceedings. This issue was also addressed during the 2008 ‘Información Satelital y su valor como medio de prueba en tribunales nacionales e internacionales’ conference, hosted by the Argentine Space Agency (CONAE) in Buenos Aires and the 2008 ILA Space Law Conference in Rio de Janeiro. During the conferences, several conclusions were drawn as to the use of remote sensing evidence in the legal sector:235

a. There is still a lack of awareness, knowledge and understanding in the legal sector as to what these technologies can offer and what are their limitations are.

b. As technology is not currently developed with the legal sector in mind, efforts should be directed to creating greater awareness of their applications and implications in the legal field.

c. Some proposals indicate the need to have an international body for accreditation and certification of satellite data.

d. Other views suggest, as a first step, the drafting of an agreement on international standards concerning authentication and certification.

e. The various sources consulted agree on the need to draw up a list of experts of international renown to which the parties to a dispute, and the courts and tribunals, may be able to resort for the interpretation of satellite data.

In the next chapter, the current state of remote sensing in legal proceedings in Belgium, France, the Netherlands, the United Kingdom, and the United States will be assessed. This will give a clear overview of the present obstacles, especially in the light of discharge violation evidence transfer as introduced by UNCLOS and the Bonn Agreement.

                                                                                                               234 A. CARPENTER, “The Bonn Agreement Aerial Surveillance program: Trends in North Sea oil pollution 1986-2004”, Mar.Pollut.Bull. 2007, 149-163. 235 INTERNATIONAL LAW ASSOCIATION SPACE LAW COMMITTEE, Legal Aspects of the Privatisation and Commercialisation of Space Activities: Remote Sensing, National Space Legislation, Registration, Rio de Janeiro Space Law Conference 2008, ila-hq.org/en/committees/index.cfm/cid/29.

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Chapter 4. Satellite remote sensing evidence in criminal proceedings

The legal framework for the prevention and detection of intentional oil pollution is mainly composed of international or regional rules, as is the enforcement of oil pollution and the transfer of evidence between state authorities. Every country, however, has national rules as well, such as the Belgian Ship Pollution Prevention Act (SPPA) and the Marine Environment Protection Act (MEPA), but those regulations are generally based on international treaties and agreements. 236 Although pollution prevention, detection, and enforcement are mainly governed on the international level, the actual criminal prosecution of offenders is organized exclusively on national level. Every country has its proper criminal code and criminal action code. National prosecutors and officials are familiar with these laws, especially with the national evidence admission standards. Officials will take these laws into account when collecting evidence in order to ensure enough admissible evidence is presented to allow prosecution of the offender. Because the inspecting state is rarely the prosecuting state, this is a considerable obstacle for authorities that wish to enforce anti-pollution laws. For example, when a ship is suspected of illegal oil pollution in coastal waters or on the high seas, the vessel will be inspected and evidence will be collected in order to make sure there was indeed a violation. These inspections will generally be carried out by port states. However, this does not imply the port state will automatically be responsible for the criminal prosecution of the offending vessel. Depending on certain conditions, international and regional procedures allow flag states and coastal states to take over the criminal prosecution from the port state. Because all investigative actions are taken according to the port state criminal rules and procedures, some evidence might not be admissible according to the flag or coastal state criminal rules and procedures. These situations can cause serious flaws in the oil pollution enforcement framework. This is especially the case with regard to satellite remote sensing evidence. There are no general, explicit rules, neither internationally nor nationally, which consider the use of this type of remote sensing data in legal proceedings. This results in legal uncertainty whether this data, for example, proving a vessel illegally polluted a maritime area, will be used in court. Added to the abovementioned problem, this situation causes a significant lack in oil pollution convictions by courts worldwide and hinders a further decrease of operational hydrocarbon pollution. To solve these legal lacunas, it is suggested international rules and standards should be adopted on the use of satellite remote sensing data.237 In order to evaluate if such international rules are necessary or feasible, the main pollution prosecution procedures framework in Belgium, France, the Netherlands the

                                                                                                               236 Law concerning the prevention of pollution by vessels, adopted on 6 April 1995 (Brussels) BS 27 June 1995, 18246. In force 7 July 1995; Law concerning the protection of the marine environment in sea areas under the jurisdiction of the Kingdom of Belgium, adopted on 20 January 1999 (Brussels) BS 12 March 1999, 08033. In force 22 March 1999. 237 INTERNATIONAL LAW ASSOCIATION SPACE LAW COMMITTEE, Legal Aspects of the Privatisation and Commercialisation of Space Activities: Remote Sensing, National Space Legislation, Registration, Rio de Janeiro Space Law Conference 2008, ila-hq.org/en/committees/index.cfm/cid/29.

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United Kingdom and the United States has to be examined first. Therefore, this Chapter will first give a brief overview of European initiatives that enhances the cooperation in criminal proceedings between member states. Secondly, the initial enforcement procedures, which involve inspection and collection of the necessary evidence, in order to initiate the national criminal prosecution process, will be discussed. The third part will gave an overview of the different conditions currently applicable in international law, which allow the transfer of criminal proceedings from one state to the other. Following the initiation of these proceedings, the admissibility of evidence must be judged. Therefore, the fourth part will evaluate the different evidence admission standards in the five countries, especially with regard to remote sensing data. Finally, the conclusion shall try to determine whether there are obstacles to the use of satellite remote sensing data in criminal proceedings. This evaluation will help to measure the feasibility of international rules in order the increase the use of this type of evidence. 4.1 European initiatives to enhance cooperation in criminal proceedings Before giving an introduction to the different procedures that bring oil pollution offenders before court in five different countries, it is important to first point out some initiatives taken on the European regional level to enhance cooperation in criminal investigation and prosecution. These initiatives are applicable to the investigations, criminal proceedings and transfer of proceedings between Belgium, France, the Netherlands and the United Kingdom with regard to oil pollution offences. 238 European Convention on Mutual Assistance in Criminal Matters Drafted within the framework of the Council of Europe, the European Convention on Mutual Assistance in Criminal Matters (ECMACM) aimed at enhancing 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 such as records and documents in criminal proceedings undertaken by state officials of the requesting party.239 The ECMACM also specifies the different requirements for such requests. In normal circumstances the requesting party must address other states through letters rogatory between special transmitting authorities. In urgent cases, these letters may be addressed to the judicial authority itself. This direct transmission may take place through the International Criminal Police Organization ICPO-INTERPOL.240 INTERPOL sets up a system to fast process requests from one state to the other. This is especially used for port state investigation requests by coastal states in case of illegal discharges of harmful substances. In addition, the Convention foresees the possibility for one state to provide information to another state where criminal proceedings take place. Therefore this convention is seen as the predecessor of the European Convention on the Transfer of Proceedings in Criminal Matters.241 The ECMACM has been signed and ratified by all North Sea states and EU member states. This Convention can serve as a basis for interpreting the provisions of the LOSC concerning cooperation between port states, coastal states and flag states in the field of providing legal assistance.

                                                                                                               238 OSPAR COMMISSION, North Sea Manual on Maritime Oil Pollution Offences, Publication No. 405/2009, Last updated: 18/06/2010, 21-26. 239 European Convention on Mutual Assistance in Criminal Matters, adopted on 20 April 1959 (Strasbourg) UKTS 24 (1992) Cm. 1928. In force 12 June 1962. 240 OSPAR COMMISSION, Ibid., 22-23. 241 See infra.

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Convention on Mutual Assistance in Criminal Matters between the Member States of the EU The Convention on Mutual Assistance in Criminal Matters between the Member States of the EU (2000 Convention) is aimed at supplementing and facilitating the previous conventions on mutual assistance such as the ECMACM and the Schengen acquis.242 This Convention prescribes cooperation between member states by spontaneous exchange of information or following a member state’s request. These requests always have to be transferred between judicial authorities with the territorial competence for initiating and executing. The required formalities and procedures are adopted in the 2000 Convention. In addition, new techniques such as video-conferencing, teleconferencing, and interception of telecommunication, facilitate a closer cooperation between EU law enforcement authorities. Other provisions deal with restitution of articles obtained by criminal means, the temporary transfer of persons held in custody for the purpose of investigation, and covert investigation. Article 13 2000 Convention foresees in the setting up of joint investigation teams. European Convention on the Transfer of Proceedings in Criminal Matters The European Convention on the Transfer of Proceedings in Criminal Matters (TPCM) was signed under the auspices of the Council of Europe in 1973.243 The TPCM was aimed at creating the possibility to transfer the proceedings from the requesting state to the requested state. This requested state would than be competent to prosecute under its proper national laws any offence to which the law of another contracting state is applicable. Unfortunately, not all North Sea states and EU member states have ratified the convention. Some of the states that ratified the TPCM include the Netherlands, Denmark, Sweden, Norway and Spain. The LOSC also provides for the transfer of proceedings on the minimum condition that the requested state, like the requesting 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 this convention provides a suitable basis to draft and adopt an international convention on the transfer of oil pollution proceedings. Schengen Agreement Closer and direct police cooperation between European member states is provided in the Convention of 19 June 1990 applying the Schengen Agreement of 14 June 1985.244 Only thirteen EU ember states are part of this Convention including the Netherlands, Belgium and France. Article 39 of the 1990 Convention is aimed at ensuring assistance by Contracting Parties Police authorities to prevent and detect criminal offences. Other provisions limit the grounds of a refusal for letters rogatory, and establish a system for urgent requests for legal assistance. Belgian and other authorities use this system intensively to send urgent requests for port state control of vessels. Implications for the implementation of the LOSC The LOSC detection and enforcement framework presupposes international cooperation in criminal matters. Due to the efforts by the Council of Europe and the EU, this cooperation has reached a high level in the European context. Some countries already call upon the ECMACM in the follow-up of

                                                                                                               242 EU Council Act establishing in accordance with Article 34 of the Treaty of the European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, adopted on 29 May 2000 (Brussels) OJ.L. 17 July 2000, ed. 197, 01. Entry into force dependable on the adoption date of EU member states. 243 European Convention on the Transfer of Proceedings in Criminal Matters (Strasbourg) 16 ETS 1973. In force 30 March 1978. 244 Convention Implementing the Schengen Agreement of 14 June 1985 between the governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, adopted on 19 June 1990 (Schengen) OJ.L. 22 September 1990, ed. 239, 19. In force 1 September 1993.

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cases of deliberate marine pollution. Especially coastal states use the system to transmit urgent requests of legal assistance to port states via INTERPOL. However, further examination is needed of the extent to which the rules and procedures provided in the other European Conventions do or do not meet the specific restrictions and conditions which the LOSC imposes, or how they can be applied. Further research is needed as well to assess if the abovementioned conventions can form a basis for international regulations in this context in order to broaden the application of interstate enforcement actions as provided by the LOSC.245 4.2 Initial national enforcement procedures This section will discuss the early-stage national enforcement procedures in each of the five countries. These procedures are aimed at inspecting vessels, collecting evidence when needed and informing national authorities in order to initiate criminal proceedings. These procedures are a mix of national and international rules, where inspection procedures are generally based on international rules and procedures to accuse offenders are commonly based on national legislation. For the Bonn Agreement Contracting Parties, these regulations are clearly summarized in the North Sea Manual on Maritime Oil Pollution Offences, drafted by the OSPAR Commission in close cooperation with the NSN and the Bonn Agreement.246 It is addressed to the actors involved in the process of bringing offenders to justice such as prosecutors, defense lawyers, magistrates and judges. The main purpose is to provide a detailed manual for assembling, presenting and evaluating evidence on oil pollution offences. 4.2.1 Belgium

The Belgian SPPA, adopted in 1995, implements the MARPOL provisions in the Belgian legal order. The SPPA has been modified in 1999 with the adoption of the MEPA and consisted of four major changes: firstly, the extension of the law to ships flying a foreign flag, secondly, the introduction of imprisonment as a possible penalty, the more stringent application of MARPOL in EU member states and an extension of the discharge prohibitions to include rules against atmospheric deposition. The SPPA sets up a system for investigation and prosecution of oil pollution offences.247 This system is based on the LOSC system and is modified to align with Directive 2005/35/EC. It consists of five main investigative principles:

a. A vessel flying a foreign flag that lies voluntarily in a Belgian port or offshore terminal can be subjected to appropriate inspections when there are elements to believe the vessel has illegally discharged oily substances in the Belgian territorial sea or the EEZ, or on the high seas.

b. When a vessel flying a foreign flag has entered a foreign port and is believed to have intentionally discharged oily substances in the Belgian territorial sea or EEZ, or on the high seas, the competent authority will need to cooperate with the Belgian authorities in order to take appropriate measures, including inspections and detention.

c. If there are clear grounds to assume a vessel in transit has illegally discharged oily substances in the Belgian territorial sea, an investigation on board can be carried out and the ship can be detained and routed to a nearby Belgian port.

                                                                                                               245 OSPAR COMMISSION, North Sea Manual on Maritime Oil Pollution Offences, Publication No. 405/2009, Last updated: 18/06/2010, 24 246 Ibid., 87 p. 247 Ibid., 31-33.

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d. When elements suggest a vessel has carried out a significant discharge in the EEZ and has refused to administer information or the information clearly deviates from the factual situation, an investigation on board can be carried out in the EEZ or the territorial sea.

e. When there is proof a ship has carried out a significant discharge which has resulted in substantial damage or a risk of substantial damage to the marine environment or Belgian coastal interests, the ship can be detained or routed to a nearby Belgian port.

Prosecution is initiated following a formal report or statement (procès-verbale) of the inspections by the competent authority (maritime police, maritime control authority, the port captain, the commander of a patrol vessel or aircraft, the Management Unit of the North Sea Mathematical Models (MUMM), the Marine, or the Directorate-General for the Environment of the European Commission). Federal Public Service for Transport and Mobility officials are responsible to inspect and report on the Paris MoU PSCs These formal reports sum up the facts and evidence collected during these inspections. This statement constitutes as legal proof that the offence has been committed unless and until the contrary is shown. This formal report must set out the possible penalties, and is delivered to the captain, skipper or owner of the vessel within fifteen days of its conclusion. Within fourteen days, the recipients can appeal against the report to the Minister for Maritime affairs, Mr. Johan Vande Lanotte. This appeal does not suspend the effect of the report, which can result in either prosecution, detention of the vessel, requirement to relocate the ship, or to a formal prohibition to leave Belgian waters. Any form of evidence can be submitted to and by the prosecutor to confirm there are serious grounds to believe a discharge has taken place. This includes eyewitness reports, photographs and films, the variation of colour on the surface of the sea, and any other standardised means of evaluation that have been agreed at international or regional level and that are recognized by the Belgian authorities. When the prosecutor has collected enough evidence, the charges will be filed, initiating the criminal proceedings. 4.2.2 France

In France, the MARPOL regulations are implemented via the Code de l’Environment.248 The relevant provisions, contained in Articles L218-11 to L218-31 originally only applied to French vessels. However, in recent years the scope has broadened to contain vessels from non-MARPOL flag states today. Every discharge of an oily substance within the EEZ, the ‘marine ecological protection zone’, the territorial sea and internal waters falls under these regulations and are subject to criminal proceedings. In addition, the failure to provide a report after an incident linked with the discharge of substances is a criminal offence in French national law.249 The enforcement is based upon formal reports or statements (procès-verbaux) by state authorities, similar to the Belgian practice. Officials who are active in the fields of navigation management, environmental protection, judicial police, and captains of French naval vessels and military aircraft can file these reports. Other officials such as staff of the French Research Institute for Exploration of the Sea (Institut français de recherche pour l’exploitation de la mer – IFREMER) are required to report all cases of illegal oil pollution to the personnel authorised to draft formal reports. French Maritime Safety (FMA) officials are responsible to inspect and report on Paris MoU PSCs. These reports are than sent to the local prosecutor and the officer responsible for response action. These reports are, as in Belgium, binding evidence, unless and until the contrary is porved to the satisfaction

                                                                                                               248 Ordonnance No. 2000-914 relative à la partie Législative du code de l’evironnement, adopted on 18 September 2000 (Paris) JO 21 September 2000. In force 2 July 2003. 249 OSPAR COMMISSION, North Sea Manual on Maritime Oil Pollution Offences, Publication No. 405/2009, Last updated: 18/06/2010, 38-43.

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of the court. The local prosecutor or judge responsible to investigate the case may decide, if this is in the interest of the proceedings, to detain the vessel. In order to increase judicial treatment efficiency, the French government has installed six specialized courts of seaboard in 2002. These are located in Le Havre, Brest, Marseille, Fort-de-France, Saint-Denis de la Réunion, and Saint-Pierre et Miquelon. These courts are the backbone of the French judicial pollution enforcement system. In 2003, an ecological protection zone (EPZ) was established in the Mediterranean and in 2004, the jurisdiction of the courts was extended to involuntary and voluntary pollution in territorial waters, as well as voluntary pollution in the EEZ and the EPZ. In 2008, the law on environmental liability of 1 August 2008 extended the jurisdiction of the Tribunal de Grande Instance de Paris (Paris TGI) to oil pollution cases with great complexity. This tribunal remains the only court for accidental releases committed in the EEZ and the EPZ and for all offences committed by French ships on the high seas. 4.2.3 The Netherlands

The 1983 Ship Pollution Prevention Law (SPPL) implements the MARPOL provisions into the Dutch legal framework.250 Article 5 prohibits the discharge of oily substances, except in cases laid down in a ‘general administrative measure’, approved by a Royal Decision. The rules on illegal discharges apply to all ships flying the Dutch flag and to all ships sailing the territorial sea and EEZ of the Netherlands. Articles 2, 4 and 5 SPPL provides certain rules to exempt categories of ships wholly or partly from these prohibitions.251 In the Netherlands, unlike in Belgium, there is an explicit duty for Dutch vessels to keep records of activities involving oily or harmful substances. This duty, similar to the French duty to keep record of all incidents where harmful substances are involved, is not imposed on vessels flying a foreign flag. However, there is a duty for all ships, national and foreign, to provide copies of the record to the Dutch authorities. In the Netherlands, the Netherlands Shipping Inspectorate (NSI) is responsible for the enforcement of the SPPL and MARPOL provisions and for the PSC under the Paris MoU. NSI officials are authorized to inspect and enter Dutch ships at any time, including the living quarters, and inspect foreign ships either in a Dutch port or in the Netherlands territorial sea when the ship is sailing to or from a Dutch port. Investigations are possible when the vessel has discharged beyond the Netherlands territorial sea. In addition, the NSI may detain ships when the vessel lacks the required MARPOL certificates, poses a risk to the marine environment, or when the NSI officer was hindered to perform the necessary inspections. Likewise, ships from a MARPOL contracting party can be detained in a Dutch port to allow inspections by Flag state officials for breaches of the Flag state national laws. Similar to the procedures in Belgium and France, NSI officials draft formal reports on the inspections performed, which are sent to the Dutch prosecutor (Officier van Justitie) to initiate criminal proceedings. 4.2.4 The United Kingdom

The United Kingdom enforcement framework consists of two separate legal systems for the parts facing the North Sea: the English framework and the Scottish framework. Fortunately, both frameworks are the same. However, this does not count for eventual criminal proceedings, which rules differ in both regions. Because most of the criminal oil pollution cases are trailed in England, this Subsection will only focus on the English enforcement framework.252                                                                                                                250 Ship Pollution Prevention Law, adopted on 14 December 1983 (Amsterdam) Stb. 1986, 191. In force 15 April 1986. 251 OSPAR COMMISSION, North Sea Manual on Maritime Oil Pollution Offences, Publication No. 405/2009, Last updated: 18/06/2010, 47-48. 252 Ibid., 52-54.

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In 1995, the English Merchant Shipping Act (MSA) was adopted to implement the MARPOL provisions. The MSA makes it possible to make an Order-in-Council, formally made in the name of the Queen by the Privy Council. This is the most formal kind of delegated legislation in the UK. It has been used to create an offence when breaching MARPOL regulations. One of the most important principles established by this legal framework is the reversal of the burden of proof for civil cases of discharges of oily substances. Once a prima facie case has been established that a vessel has illegally discharged harmful substances, those liable will have to proof they are not guilty by applying certain defenses such as discharges to secure the ship’s safety or a discharge due to damage to the ship and all reasonable steps were taken to stop or prevent the leak. In criminal cases, the prosecution has to prove a case ‘beyond reasonable doubt’ before those liable can be convicted. Because the United Kingdom has not yet decided to define an EEZ, but insisted on pollution prevention beyond its 12 NM territorial sea, the MSA is applicable to the ‘national waters’ of the UK. This area is defined by a set of coordinates which are the same as the boundaries of the continental shelf. In this area, all ships, foreign or national, are obliged to comply with the MSA. In addition, the Order-in-Council gives effect to the MARPOL provisions by making all discharges in the area of jurisdictions of other states or on the high seas an offence in the English legal system. This implies that prosecutions can be brought in England for a breach of MARPOL provisions by any ship in any part of the world. In line with articles 218 and 228 LOSC, the Order-in-Council specifies that criminal proceedings in England for discharges in areas under the jurisdiction of other coastal states will be discontinued at the request of that Coastal state.253 The Maritime and Coastguard Agency (MCA) of the United Kingdom is responsible for inspections and PSC under the Paris MoU. The MCA has a dedicated Enforcement Unit tasked to investigate breaches of Merchant Shipping Law. This unit can investigate pollution offences, interview suspects and prepare matters for court. The reports and evidence collected by MCA officials are sent to the local prosecutor, which will decide on further actions. The prosecution is either summary or on indictment. When a prosecutor files an application – a written statement of the essential facts – to the magistrate’s court, this court can than issue a summons to the defendant to appear before court. Witness statements can be used in the trial as evidence, unless the defendant contests these statements. The eventual trail will usually be held before a district judge. Appeal is possible to either the Crown Court or to the High Court, depending on the subject of the appeal. A summary prosecution is the common prosecution method for oil discharges while a prosecution on indictment is only used in very serious cases. Before the actual trail commences, an initial hearing will be held by the magistrate’s court to ensure the evidence is sufficient to justify committal for trail on indictment. The actual trail will normally be held before a circuit judge. The defendant may appeal to the Court of Appeal. The prosecutor, unless he believes the judge made serious errors, has no right to appeal. 4.2.5 United States

In the United States, the APPS is responsible for the implementation of MARPOL. This counter pollution framework is based on three methods of detection: firstly, the technique of remote sensing, secondly, the inspection-based detection, and thirdly, the detection through whistleblowers. The main service responsible for the enforcement of MARPOL provisions is the US Coast Guard, which is responsible for inspections at sea and PSC in US Ports. 254 These PSCs are not organized in a

                                                                                                               253 OSPAR COMMISSION, North Sea Manual on Maritime Oil Pollution Offences, Publication No. 405/2009, Last updated: 18/06/2010, 47-48. 254 US COAST GUARD, “Law Enforcement & Coast Guard Boardings, 2012, cgaux.org/rbs/boating-law-info.php.

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MARPOL MoU, unlike in the Canadian PSCs which are part of the Paris MoU framework. Because this framework has already been discussed earlier, this Subsection will focus on the procedures to initiate criminal proceedings. 255

When APPS and MARPOL violations are detected, the US Coast Guard will withdraw the clearance to sail and require the posting of surety. When civil or administrative actions will be taken, a ‘letter of undertaking’ is accepted as surety. When criminal procedures will follow, a bond is posted through an approved financial institution. When the surety is posted, the ship can leave the jurisdiction. However sometimes the US legal system requires that defendants have the opportunity to confront witnesses against them. This sometimes prohibits crewmembers to leave US territory. In such a situation, shipping companies tend to abandon these crewmembers. In order to avoid this, US Coast Guard officials negotiate agreements, which releases the ship but requires ship owners or operators to take care of the sailors. 256 Criminal prosecution generally takes place only when there is evidence of wilfull misconduct, consciousness of guilt, failure to report a spill, falsification of records, tampering with pollution prevention devices, prior misconduct, repetitive discharges, actual environmental harm or the threat of harm. Following inspections, the collection of evidence, and reports of federal investigative agencies such as the US Coast Guard Investigative Service and the EPA, the matter is referred to the US Department of Justice, which will appoint a local US attorney, responsible for further proceedings. When the Assistant US Attorney determines there is a probable cause, the evidence will be presented to the grand jury, consisting of 16 to 23 citizens, which will vote on the proposed criminal charge. This charge is called indictment and is similar to the system in the United Kingdom. Only evidence collected by investigative agencies can be taken into consideration. In some serious cases the US Attorney issues an arrest warrant before the evidence is presented to the grand jury. One of the most significant aspects of the US legal system is the wide discretion of prosecutors in criminal cases. A federal prosecutor is allowed to decline to prosecute if he or she finds it not significant or feasible enough to merit prosecution in federal court. Offenders will be trailed in US District Courts. Defendants can appeal to the US Court of Appeal and in some circumstances to the US Supreme Court. 4.2.6 Enforcement framework overview

In the tables below, a clear overview is given of the different actions flag states, coastal states and port states can take to enforce anti-pollution laws. The tables consist of two main columns. The first column determines the different enforcement measures state authorities can take, depending on the location of the MARPOL offence. The second column designates the relevant legal provisions in international, regional and national laws, authorizing the corresponding measures. The international rules consist of the MARPOL and LOSC regulations and are applicable to all five countries. The regional rules consist solely of EU legislation and are therefore only applicable to Belgium, France, the Netherlands, and the United Kingdom. The national provisions consist solely of APPS regulations and are therefore only applicable to the United States. International provisions are indicated in standard characters, regional agreements are indicated in italic characters and the US national provisions are indicated in bold characters.

                                                                                                               255 See supra Section 3.4. 256 R.A. UDELL, “United States Criminal Enforcement of Delibarete Vessel Pollution: A Document-Based Approach to MARPOL” in D. VIDAS (ed.), Law, Technology and Science for Oceans in Globalisation, Leiden, Marinus Nijhoff Publishers, 2010, 277-280.

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Table 4: Enforcement by Flag state

No. MARPOL offences, irrespective of

location Legal instruments

1. A Flag state may request a Port state control Art. 6 MARPOL Via MoU on PSC

2. A Flag State shall institute proceedings when receiving a request/report from another state and there is enough evidence collected

Art. 4 MARPOL Art. 217 LOSC Sec. 8, (b) APPS

3. A Flag state may request the legal assistance of a Port state and Coastal State

Art. 217 LOSC ECMACM, via INTERPOL in urgent cases Direct transmission of request on the basis of the Schengen Convention

4. A Flag state may request a Port state to institute proceedings in cases where the offence took place in the area of jurisdiction of a Coastal state

Art. 218 LOSC

5. A Flag state can suspend proceedings instituted by a state in respect of an offence beyond its territorial sea, upon the taking of proceedings within six months of the date on which proceedings were first instituted

Art. 228 LOSC

6. A Flag state can verify whether a ship of its own registry or nationality, or operating under its authority, has discharged oily substances

Art. 217 LOSC Sec. 8, (e) APPS

No. MARPOL offences in the territorial sea

of a Coastal state Legal instruments

7. A Flag state cannot suspend proceedings instituted by the Coastal state; however, the Flag state has the obligation to institute proceedings if it receives a request thereto from that Coastal state

Art. 4 MARPOL Art. 228 LOSC

8. When the Flag state receives a request from the Coastal state to initiate proceedings for MARPOL offences in its territorial sea, the Flag state has the same powers of enforcement as mentioned in points 1. to 4.

Art. 4 MARPOL Art. 228 LOSC

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Table 5: Enforcement by Coastal state

No. MARPOL offences in the territorial sea Legal instruments 1. The Coastal state may request a Port state

control (administrative investigation) Art. 6 MARPOL Via MoU on PSC Art. 7, section 1, (a) and (b) Directive 2005/35/EC

2. The Coastal state may institute proceedings or report to the Flag state

Art. 4 MARPOL Art. 7, section 2 & 3 Directive 2005/35/EC Sec. 8, (b) APPS

3. If the Coastal state decides to institute proceedings: - it may request the Port state for legal

assistance such as letters rogatory or judicial investigation

- it may request the Port state to institute proceedings

Art. 218 LOSC ECMACM, via INTERPOL in urgent cases Direct Transmission or request on the basis of Schengen - Art. 7, section 1, (a) Directive

2005/35/EC

- Art. 218 UNCLOS 4. In cases where a Port state has instituted

proceedings, the Coastal state may request that Port state to suspend proceedings

Art. 218 LOSC

5. The Coastal state has the right of hot pursuit under certain conditions

Art. 111 LOSC

6. When the suspected ship is navigating in the territorial sea, the Coastal state may undertake a physical inspection, which can lead to criminal prosecution, including the detention of the ship

Art. 220 LOSC Art. 7, section 2 Directive 2005/35/EC Sec. 8, (b) APPS

No. MARPOL offences in the EEZ Legal instruments 7. The Coastal state has the same powers of

enforcement as mentioned in points 1. to 5. Same as 1. to 6.

8. When the suspected ship is navigating in the EEZ or the territorial sea, the Coastal state may, depending on the conditions, ask for information or undertake a thorough inspection, which can lead to criminal prosecution, including the detention of the ship

Art. 220 LOSC Art. 7, section 2 Directive 2005/35/EC Sec. 8, (b) APPS

9. Proceedings shall be suspended upon the taking of proceedings by the Flag state within six months of the date on which proceedings were first instituted (with certain exceptions)

Art. 228 LOSC

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Table 6: Enforcement by Port state

No. MARPOL offences outside the

territorial sea + EEZ of the Port state Legal instruments

1. A Port state can execute an administrative Port state control upon request of another state, which can lead to a temporary detention of the ship; the report of this investigation is passed on to the requesting state.

Art. 5 & 6 MARPOL Art. 219 LOSC MoU on PSC Art. 6, sections 1 & 2 Directive 2005/35/EC Sec. 8, (c) APPS

2. A Port state may undertake investigations and institute proceedings, if the universal port state jurisdiction is established in national law, or may report to the Flag state.

Art. 218 LOSC Art. 4 MARPOL Art. 6, sections 1 & 2 Directive 2005/35/EC Sec. 8, (b) APPS

3. In cases where the offences take place in an area of jurisdiction of another state, a Port state may only institute proceedings: - upon request of that Coastal state, - upon request of the Flag state, - upon request of another state damaged or

threatened by the offence, - if the offence caused or is likely to cause

pollution in its own territorial sea or EEZ

Art. 218 LOSC - Art. 7, section 2 Directive 2005/35/EC

4. Any proceedings instituted by a Port state on the basis of an investigation may be suspended at the request of a Coastal state

Art. 218 LOSC

5. A Port state shall, as far as practicable, comply with requests from the Flag state for investigation of an offence, irrespective of its location

Art. 218 LOSC Sec. 8, (c) APPS

6. Proceedings shall be suspended upon the taking of proceedings by the Flag state within six months of the date on which proceedings were first instituted (with certain exceptions)

Art. 228 LOSC

No. MARPOL offences inside the territorial

sea + EEZ of the Port state Legal instruments

7. Port state acts as Coastal state See Table 5

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4.3 Transfer of criminal proceedings The LOSC provides the possibility to transfer criminal proceedings from one state to the other. This gives the opportunity to states to prosecute foreign actors, liable of damaging the environment in areas under their jurisdiction. Before the 1982 LOSC, the flag state was responsible for international and national regulation enforcement. However, with the advent of flags of convenience states, this caused a serious problem.257 Because these states lacked the ability or even the will to institute investigations and proceedings in case of OILPOL and MARPOL violations, the LOSC shifted the focus of enforcement and prosecution from flag states to coastal and port states. When a vessel is suspected of having discharged oily or other harmful substances in an area of jurisdiction of a coastal state or on the high seas, the vessel inspections and the collection of possible evidence will commonly be the responsibility of the port state. However, this does not imply criminal proceedings will automatically be instituted in this state. The coastal state and flag states have the possibility to request the port state to suspend proceedings and transfer all necessary documents and evidence to allow prosecution under their proper national laws. In addition to the transfer of proceedings, flag states and coastal states can request the port state to start prosecution, which could increase the chances to convict the offenders and those liable. These rules and regulations are prescribed by MARPOL and UNCLOS legislation. Because most these procedures are not combined in one article or one section, it becomes difficult to identify under what circumstances or conditions authorities can transfer proceedings from one state to the other, or when the flag state or coastal state has the opportunity to request port states to institute criminal proceedings. In the determination tables below a clear overview is given of the different transfer procedures. By reading the table from left to right, it becomes possible to determine under what framework and circumstances, a transfer of criminal proceedings is allowed. All three tables below are split into two separate sections: one section will list the conditions under which a state can institute proceedings under their proper national law, the other section allows to determine when a transfer is possible. These two options are also listed in the first column of each of the three tables. The second column allows you to choose between the two available frameworks: firstly, the Bonn Agreement, which is applicable to Belgium, France, the Netherland and the United Kingdom, and secondly, the United States framework. The next options are different per section. In the first section of each table, the different conditions are listed under which proceedings under port state, coastal state, or flag state national laws are possible. The second section lists the different transfer procedures possible, followed by the circumstances under which these transfers are possible. The last column of both sections displays the relevant international provisions.

                                                                                                               257 See supra Paragraph 1.2.1.4.

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Table 7: Port state Prosecution & Transfer (P&T)

Type Framework Condition Article

Port state prosecution

Bonn Agreement

Proceedings are initiated in case of MARPOL offences outside its territorial sea or EEZ because of an established universal port state jurisdiction

Art. 218 LOSC Art. 4 MARPOL

Proceedings are initiated in case of MARPOL offences outside its territorial sea or EEZ if the offence caused or is likely to cause pollution in its proper territorial sea or EEZ

Art. 218 LOSC

Proceedings are initiated in case of MARPOL offences outside its territorial sea or EEZ upon request of another state damaged or threatened by the offence

Art. 218 LOSC

In cases where the MARPOL offence takes place in an area of jurisdiction of a Coastal state, a Port state can only institute proceedings upon request of that Coastal state

Art. 218 LOSC

In cases where the MARPOL offence takes place in an area of jurisdiction of a Flag state, a Port state only institute proceedings upon request of that Flag state

Art. 218 LOSC

United States

Proceedings are initiated in case of MARPOL offences outside the US territorial sea or EEZ because of the established universal port state jurisdiction

Art. 4 MARPOL

Type Framework Transfer Condition Article

Prosecution transfer from/to Port state

Bonn Agreement

From Port state to Coastal State

Any proceedings in case of MARPOL offences outside its territorial sea or EEZ, instituted by a Port state on the basis of an investigation, may be suspended at the request of a Coastal state

Art. 218 LOSC

From Port state to Flag state

Proceedings in case of MARPOL offences outside the territorial sea or EEZ shall be suspended upon the taking of proceedings by the Flag state within six months of the date on which proceedings were first instituted (with certain exceptions)

Art. 228 LOSC

United States      

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Table 8: Coastal state Prosecution & Transfer (P&T)

Type Framework Condition Article

Coastal state prosecution

Bonn Agreement

The Coastal state may institute proceedings in case of MARPOL offences in its territorial sea or EEZ

Art. 4 MARPOL

When a ship suspected of MARPOL offences is navigating its territorial sea, the Coastal state may undertake physical inspection, which can lead to the institution of proceedings

Art. 220 LOSC

When a ship suspected of MARPOL offences is navigating its EEZ, the Coastal state may ask for information and undertake physical inspection, which can lead to the institution of proceedings

Art. 220 LOSC

United States The Coastal state may institute proceedings in case of MARPOL offences in its territorial sea or EEZ

Art. 4 MARPOL

Type Framework Transfer Condition Article

Prosecution transfer from/to Coastal state

Bonn Agreement

From Coastal state to Flag state

Proceedings in case of MARPOL offences in the EEZ, shall be suspended upon the taking of proceedings by the Flag state within six months of the date on which proceedings were first instituted (with certain exceptions)

Art. 228 LOSC

From Port state to Coastal state

In cases where a Port state has instituted proceedings, the Coastal state may request that Port state to suspend its proceedings when the MARPOL violation occurred in its territorial waters or EEZ

Art. 218 LOSC

United States

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Table 9: Flag state Prosecution & Transfer (P&T)

Type Framework Condition Article

Flag state prosecution

Bonn Agreement

A Flag state shall institute proceedings when receiving a request/report from another state in case of MARPOL offences, irrespective of its location

Art. 6 MARPOL MoU on PSC

The Flag state has the obligation to institute proceedings in case of MARPOL offences in the territorial sea of a Coastal state when it receives a request thereto from that Coastal state

Art. 228 LOSC Art. 4 MARPOL

United States

A Flag state shall institute proceedings when receiving a request/report from another state in case of MARPOL offences, irrespective of its location

Art. 6 MARPOL

The Flag state has the obligation to institute proceedings in case of MARPOL offences in the territorial sea of a Coastal state when it receives a request thereto from that Coastal state

Art. 4 MARPOL

Type Framework Transfer Condition Article

Prosecution transfer from/to Coastal state

Bonn Agreement

From Port state to Flag state

A Flag state can suspend proceedings instituted by a Port state in respect to a MARPOL offence beyond its territorial sea, upon the taking of proceedings within six months of the date on which proceedings were first instituted (with certain exceptions)

Art. 228 LOSC

From Coastal State to Flag state

A Flag state can suspend proceedings instituted by a Coastal state in respect to a MARPOL offence beyond its territorial sea, upon the taking of proceedings within six months of the date on which proceedings were first instituted (with certain exceptions)

Art. 228 LOSC

United States

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4.4 National evidence admissibility standards When the criminal procedure is instituted, the judge will have to decide on the different elements brought forward by the prosecutor. By testing the evidence with the national evidence admissibility standards, a first but important step is being taken in the procedure. By including or excluding certain elements, the chance of convicting the possible offender increases or decreases. In order determine whether satellite images could be applicable in criminal proceedings, it is of vital importance to evaluate these evidence admissibility standards. This evaluation contains of three parts: the first part will give an introduction on the use of satellite data in international legal proceedings. In the second part, the different general admissibility standards in the five countries will be summarized, including the specific rules on oil pollution evidence. The last part shall give a few remarks on remote sensing data itself and will try to disprove some common misconceptions about this evidence that exist today. 4.4.1 Remote sensing data in international legal proceedings

The use of satellite images and data as evidence in international and national legal proceedings has already been accepted in some cases, especially for border disputes before the International Court of Justice (ICJ). Common examples are the Benin v. Niger case, the Mali v. Burkina Faso case and the Qatar v. Bahrain case.258 In these judgments, the ICJ accepts remote sensing images as evidence, giving it the probative value as additional elements which could contribute to corroborating the existence of a fact.259 Until now, however, remote sensing evidence has never been used as sole evidence proving the factual situation. In addition, there are no cases present concerning the use of satellite date as evidence to prove intentional illegal oil discharges.

The most important case law with regard to remote sensing evidence and oil pollution can be found in national legal proceedings, namely in the Singapore Song San judgment.260 In 1996, the Singaporean oil tanker Song San deliberately discharged oil into the Singapore Straits and polluted beaches of the East Coast and Southern Islands, including Sentosa Island. Fortunately, the National University of Singapore’s (NUS) Center for Remote Imaging, Sensing and Processing (CRISP) acquired SAR data (image 13), taken by ESA’s ERS-2 satellite. On this image, the vessel Song San can clearly be seen polluting the Singapore Straits. Due to this SAR image, the offenders were convicted in court and fined a total of 1.25 million Singapore Dollars, which is roughly 775,000 Euro. This judgment is the first and only case where remote sensing data

was used to prove intentional illegal oil pollution. Unfortunately this case has no value in Europe and the United States. However, this does not imply remote sensing data cannot be used as evidence in criminal proceedings in Belgium, France, the Netherlands, the United Kingdom and the United States. But, because of a lack of case law regarding satellite data to prove illegal oil spills, it is necessary to assess the analogous national rules and cases

                                                                                                               258 ICJ, 12 July 2005, ICJ Reports 2005, 90; ICJ, 22 December 1986, ICJ Reports 1986, 554; ICJ, 16 March 2001, ICJ Reports 2001, 40. 259 J.K. HETTLING, “The use of remote sensing satellites for verification in international law”, Space Policy 2003, 38. 260 Center for Remote Imaging, Sensing and Processing (CRISP), “Satellite Remote Sensing for Oil Spill Monitoring”, 2001, crisp.nus.edu.sg/~research/oilspills/oilspills.htm.

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on evidence in order to determine whether this data can be used in court. In addition, this will allow indicating the possible national differences between the evidence admission standards of these five countries. 4.4.2 Belgium

4.4.2.1. General rules on evidence admissibility in criminal proceedings

The Belgian Code d’Instruction Criminelle (CIC) contains only a few provisions with regard to criminal evidence. The basic article is Article 154 CIC, which states: “contraventions will be proved either by statements or reports, or by witness if there are no reports or statements, or with their support”.261 With Article 189 CIC, this article is extended to délits. According to the Belgian Cour de Cassation, this list is neither limitative nor exhaustive.262 Other types of evidence, not recorded in Article 154 CIC such as expert reports, audiovisual material, legal presumptions, and common knowledge, are allowed as well. In order to be admissible, the judge has to establish the probative value on the basis of his proper personal belief or intime conviction. These two key elements govern the admissibility of evidence in the Belgian legal system.263 This is added to the adage ‘in dubio pro reo’ – ‘when in doubt, for the accused’ – which implies only irrefutable evidence, establishing the guilt of the accused, will lead to its conviction. However, the law provides certain exceptions for this freedom. In certain cases, statutory provisions expressly require certain types of proof to be admissible. This implies only the legally prescribed evidence has probative value.264 One of the most common examples are statements (procès-verbaux). These are reports, drafted by officials appointed by law, which give an official record of the evidence left behind and any fact suggesting the identity of the offenders. These procès-verbaux are authentic acts (actes authentiques), which are drafted according to strict principles and are not easily rebutted in court. Evidence will not be admissible in two cases: firstly, when evidence is obtained illegally, secondly, when the collection of evidence has violated general principles of procedure, and thirdly, when statutory provisions deny certain types of evidence in court in particular situations. These exclusion rules are very similar to the exclusionary rules applicable in the English legal system. Authorities do not have the ultimate power to collect evidence and to uncover the truth. When performing an official investigation, officials must abide certain rules. Evidence will not be admissible in court when this was collected illegally, such as information obtained by means of an offence, infringement of confidentiality, theft of documents, threats or assault, or even when the rights of the defense are denied.265 In addition, evidence collected in breach with the right of privacy, prescribed in Article 8 on the Law on Privacy and Article 8 of the European Convention on Human Rights (ECHR), will not be admissible in court.266 This could cause serious obstacles when satellite images would become more detailed and accurate in the future. According to the Belgian Commission for the Protection of the Personal Privacy (CPPP), satellite images fall under the scope of the Law on

                                                                                                               261 B. PESQUIÉ, “The Belgian System” in M. DELMAS-MARTY and J.R. SPENCER (eds.), European Criminal Procedures, Cambridge, Cambridge University Press, 2002, 121-125. 262 Cass. 17 December 1980, Pas. 1981, 447; Cass. 18 November 1987, Pas. 1987, 325. 263 C. VAN DEN WYNGAERT, Strafrecht en strafprocesrecht in hoofdlijnen, Antwerp, Maklu, 2009, 1206. 264 See infra. 265 B. PESQUIÉ, Ibid., 122-123. 266 Law concerning the protection of the personal privacy with regard to the processing of personal information, adopted on 8 December 1992 (Brussels) BS 18 March 1993. In force 28 March 1993, as subsequently amended.

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Privacy.267 Satellite images are only allowed under the Law on Privacy when the amount of detail is not higher than needed to detect the crime, and when these images are used for the sole purpose to prosecute these crimes. Although this advice was aimed at the detection of construction crimes, it could become applicable on oil spill detection images. The second situation where evidence could be rebutted is when investigative actions have violated the general principles of procedure. When state officials such as police officers perform illegal telephone-tapping, when statements are not drafted according to the general rules of procedures, or when legal types of evidence has been obtained by illegal methods such as confessions under narcotics, the evidence cannot be taken into consideration by the judge. In some situations, the law expressly prohibits the use of certain types of evidence. For example, when juvenile criminals are transferred from juvenile courts to regular courts, documents describing the young criminal’s personal situation cannot be made available for other accused persons or victims. When one of these three situations occurs, the evidence is rebutted. This strict method of evidence exclusion is applicable in Belgian courts since 1923 and is the most rigid system compared to the other four countries.268 Additionally, according to the ‘fruits of the poisonous tree doctrine’, not only the primary evidence will be excluded, but the secondary evidence, collected as a result of the information gathered by the unlawful primary evidence, will be excluded. When the primary evidence is unlawful, it ‘contaminates’ all secondary facts. However, the Belgian Cour de Cassation weakened this rigid system on 14 October 2003 in the Antigoon judgment. The highest court in Belgium was of the opinion that unlawful evidence should be rebutted without question when on of three conditions was fulfilled. In other cases, the judge could decide discretionally whether to allow unlawful evidence, analogous to the system of the other four countries. These three conditions are: firstly, when the law sanctions the unlawful evidence to be null and void, secondly, when the unlawfulness has affected the reliability of the evidence, and thirdly, when the use of the unlawful evidence would harm the right on a fair trial. In addition, evidence collected by state officials of third countries is applicable in Belgian court as well. The decision whether this evidence is permitted contains of three stages. 269 Firstly, the type of evidence presented must be legally admissible according to the third country jurisdiction. It is not necessary that Belgian law explicitly allows the type of evidence concerned. Secondly, the type of evidence must be in accordance with the international and supranational rules, directly applicable in the Belgian legal order. The third stage consists of the condition that the type of evidence must have been lawfully acquired according to the law of the third country. However, analogous to the Antigoon judgment, unlawfully acquired evidence can still be applicable when the three aforementioned conditions are fulfilled.

4.4.2.2. Specific rules on oil pollution evidence in criminal proceedings

With regard to oil pollution evidence, all abovementioned rules apply. However, additional rules on evidence admissibility can be found in the SPPA. Article 5bis, introduced by the MEPA, prescribes that “all types of evidence can be applied by state authorities” to confirm an oil discharge, including eyewitness reports, image and movies, hues on the ocean surface and every other international or regional assessment standards accepted by Belgium. Although this is legally a mere confirmation of the                                                                                                                267 COMMISSION FOR THE PROTECTION OF THE PERSONAL PRIVACY (CPPP), Adviesaanvraag inzake het gebruik van satellietbeelden bij de opsporing en vaststelling van bouwovertredingen, Advice No. 26/2006, 12 July 2006. 268 C. VAN DEN WYNGAERT, Strafrecht en strafprocesrecht in hoofdlijnen, Antwerp, Maklu, 2009, 1221. 269 R. VERSTRAETEN, Handboek Strafvordering, Antwerp, Maklu, 2007, 860-861.

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general rule that all types of evidence are allowed, it will have a positive effect on judges and hopefully give an incentive to use remote sensing evidence in this legal context.

4.4.2.3. Conclusion

Until now, there is no case law present in Belgium regarding the admissibility of satellite images. This hinders to conclude whether or not satellite images are applicable in Belgian courts, especially with regard to illegal oil discharges. Although the law expressly suggests (satellite) images are applicable to prove pollution in the SPPA, it is still judge alone who decides whether or not the satellite images are reliable and admissible as evidence. 4.4.3 France

4.4.3.1. General rules on evidence admissibility in criminal proceedings

The French evidence admissibility system is very similar to the Belgian system. All general rules regarding the admissibility of evidence in France are contained in the Code de Procédure pénale (CPP). The rules of evidence can be summed up according to three principles: firstly, legality in the collection of evidence, secondly, freedom in the types of evidence employed, and thirdly, the freedom of the judge to assess it (intime conviction).270 The first principle, legality in the collection of evidence, relates to the different rules contained in the CPP with regard to the conditions for taking depositions, interrogation, searches, expert-witness reports or telephone tapping. The second principle, the freedom in the types of evidence employed, is enshrined in paragraph 1 of Article 427 of the CPP. Apart from cases where specific laws state otherwise, any type of evidence may establish any kind of offence. Article 537 of the CPP lays down additional rules for contraventions, which in certain circumstances are exclusively established by official reports by competent officials. The third principle, the freedom of the judge to assess it, means the judge is never bound to convict, even following a confession, if he himself is not convinced, in which case the defendant gets the benefit of the doubt. This is confirmed in Article 427 of the CPP: “The judge decides on the basis of his personal conviction, and may only base his decision on evidence put to him during the trail and discussed in an adversarial hearing before him”. Evidence may only be admitted if it has been obtained legally and without interfering with the rights of the defense. This obligation is only for evidence confined by public authorities. Evidence gathered by the private parties are exempt from the rules about nullities. The sole purpose of the judge is to assess the probative value of the evidence presented.

4.4.3.2. Specific rules on oil pollution evidence in criminal proceedings

In France, all types of evidence are allowed. However, officers are required to look for evidence in accordance with IMO Resolution A.542. This resolution, adopted on 17 November 1983, contains procedures for the control of ships and discharges under Annex I MARPOL. This resolution aims at providing general rules for the inspection of certificates, design and equipment of ships in order to effectively comply with the MARPOL provisions.271 Two cases, the TRAQUAIR case of 1995 and the SALAMINA case of 1996, confirm that photographs

                                                                                                               270 V. DERVIEUX, “The French System” in M. DELMAS-MARTY and J.R. SPENCER (eds.), European Criminal Procedures, Cambridge, Cambridge University Press, 2002, 232-239. 271 BONN AGREEMENT, “Evidence required in different Bonn Agreement countries”, 2012, bonnagreement.org/eng/html/FEPO_manual/chapter_3.htm.

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can be admitted as evidence for the conviction of oil pollution offenders. In the TRAQUAIR case, the judge stated the following: “Considering that these findings establish that the visual observation from an aircraft of an oil spill of over eight nautical miles long and 10 to 15 meters wide is sufficient to prove that the discharge of oil is over 15 ppm with no need for sampling which is not always possible. Considering that photographs […] are of sufficient quality to prove the darker colour of the sea in the wake of the ship […] and the absence of any other ship in the same area at the same time. Hence it is sure that the spill, with split brownish stains, observed by the agents is in fact from the MV Traquair”.272

4.4.3.3. Conclusion

As in Belgium, there is no specific legislation that prohibits or explicitly encourages the use of satellite remote sensing data in criminal proceedings. However, the abovementioned cases show that the use of photographic material is qualified as admissible evidence. This may open the door for the acceptance of satellite images. 4.4.4 The Netherlands

4.4.4.1. General rules on evidence admissibility in criminal proceedings

The Dutch evidence admissibility standards are based upon strict rules and regulations. 273 The Netherlands Criminal Action Code (Wetboek van strafvordering or W.Sv.) upholds the principle that the judge can only convict an offender when the elements in the criminal proceeding are in conformity with the provisions of the W.Sv. These provisions include two main principles. The first principle establishes the freedom of the judge to evaluate the admissible evidence presented and to draw conclusions from it, without the obligation to motivate this conclusion. The second principle points at the different evidence minimum regulations in the W.Sv. For example, a simple eyewitness report is not sufficient to convict an offender. This principle limits the first principle; therefore it is necessary to present as much evidence as possible in order to convict the possible offender. In addition, the W.Sv. includes rules on how to present certain types of evidence, rules on the different types of evidence and on rules with regard to the probative value of the types of evidence. According to Article 339 W.Sv., only five types of evidence are allowed: firstly, the observations by the judge, secondly, the statements by the offender, thirdly the eyewitness statements, fourthly, the statements by experts, and fifthly the written documents. In this context, the first and last type of evidence is important. The first type consists of observations by the judge in the courtroom (Article 340 W.Sv.). This is a very broad notion and includes the assessment of photographs and other audio-visual media.274 The judge is not allowed to motivate his judgment on the mere basis he saw a picture or movie, he needs to describe the implications as well in order to motivate his judgment. The last type of evidence, the written documents, is basically the formal reports drafted by state officials. These can either include reports of port state inspections or expert reports on the different interpretations of satellite remote sensing data.

                                                                                                               272 BONN AGREEMENT, “Evidence required in different Bonn Agreement countries”, 2012, bonnagreement.org/eng/html/FEPO_manual/chapter_3.htm. 273 A. MINKENHOF, J.A.W LENSINGM J.M. REIJNTJES and M.P. BART, De Nederlandse Strafvordering, Arnhem, Gouda Quint, 1993, 266-275. 274 HR 8 June 2004, NJ 2004, 413.

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4.4.4.2. Specific rules on oil pollution evidence in criminal proceedings

The most important evidence is a witness statement by qualified observers declaring that a ship has been illegally discharging oil. In September 1994 the Dutch Supreme Court accepted that when traces of mineral oil can be observed visually, this means that the oil concentration discharged exceeds 15 ppm and thus constitutes an offence.275 Photographs of the spill can be useful to support eyewitness reports from officials, but are generally not required to convict the offender.276

4.4.4.3. Conclusion

The Dutch legal framework governing the admissibility of evidence is much more stringent than those applicable in Belgium and France. However, there are no significant obstacles which could hinder the acceptance of satellite remote sensing images in criminal proceedings. When these images are presented in court, the judge is free to take this evidence into consideration and, when other types of evidence provide similar information, use these images to convict possible offenders. 4.4.5 The United Kingdom

4.4.5.1. General rules on evidence admissibility in criminal proceedings

The English legal system has a system of evidence rules in the sense of formal rules about such matters as the burden and standard of proof. 277 Although this is not unique in the world, the complicated set of exclusionary rules is. The first part of this set of rules concerns evidence that has been illegally or improperly obtained. The second part is the rule against hearsay. The third and last part contains rules against evidence of bad character. The rule against hearsay is a common law rule to the effect that another person, repeating to the court, may not replace a person’s oral testimony. When either side wishes to use these testimonies, they must do so by bringing this person to court. The rule against hearsay is largely responsible for the predominantly oral character of a contested English trial. The rule against evidence of bad character is aimed at the prosecutor. He is prohibited to use the bad character, for example, the fact the offender already has a criminal record, to prove the offender’s guilt. Although these restrictive rules seem very important, they are less important than it first appears. These rules only apply when the court needs to decide on the basic issue of guilt or innocence and do not affect the evidence admissibility standards. It is for the judge or the magistrates in the magistrate’s court to decide what evidence is to be admitted. The Bench has the task and duty to reject evidence that is legally inadmissible. The rejection is, however, not automatic. In practice, courts will not always reject a convincing piece of evidence, even though this was obtained improperly, but certain exceptions apply. In essence, questions on the admissibility of evidence only arise when the defendant contests his guilt. Therefore, the court is relieved from of its duty to examine evidence when the defendant pleads guilty. As in Belgium, France and the Netherlands, judges are free to evaluate the pieces of evidence they think fit – although no statutory text lays down this provision. However, judges can only convict an offender when the crime was established ‘beyond any reasonable doubt’, except in cases where the defendant pleads guilty.

                                                                                                               275 IMO, Visibility Limits of Oil Discharges of Annex I of MARPOL 73/78, Resolution MEPC.61(34), 9 July 1993. 276 BONN AGREEMENT, “Evidence required in different Bonn Agreement countries”, 2012, bonnagreement.org/eng/html/FEPO_manual/chapter_3.htm. 277 J.R. SPENCER, “The English System” in M. DELMAS-MARTY and J.R. SPENCER (eds.), European Criminal Procedures, Cambridge, Cambridge University Press, 2002, 142-200.

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Photographs are admitted in English courts since the nineteenth century.278 The essential principle on which the admissibility of photographs is based is as follows:

a. The fact that a witness has been aided by a device in seeing or hearing something (for example binoculars or loudspeaker), does not make the evidence of what he saw or heard inadmissible.

b. The fact that a machine is used to assist the senses of the viewer or witness makes no difference.

Before an image can be admitted, its authenticity must be proved.279 The photographer must prove he took the picture or must prove the pictures derive from untouched negatives. In addition, the image must be relevant to an issue in the case before it can be used in the trail. This includes the piece of evidence must not fall under the exclusionary rules. Photographs during criminal proceedings are often referred to as ‘scenes and situations reproduced by mechanical and chemical devices’. The judge may therefore inspect them and draw whatever inferences are proper. When photographs display elements that are not readily visible such as unclear satellite pictures, the evidence of an eyewitness can resolve the deficiency.

4.4.5.2. Specific rules on oil pollution evidence in criminal proceedings

Any evidence can be used provided it is presented to the court in the correct format and can be supported by oral testimony from a witness.280 Such evidence includes aerial photographs, SLAR images, witness statements from aviators and surveyors and evidence in Oil Record Books. If the offender pleads guilty, there is no need for a trail. In that case, the magistrate’s court can sentence the offender in a matter of hours when the investigation is completed. Suspects are given the opportunity of formally admitting their guilt which alleviates the need for a trial. Matters can be brought before the magistrates for sentencing in a matter of hours once an investigation has been completed. Importantly the Regulations provide that a ship may be detained if it is suspected of pollution and this provision encourages shipowners to assist the Maritime and Coastguard Agency (MCA) with its enquiries.

4.4.5.3. Conclusion

The United Kingdom applies a formal framework on the admissibility of evidence with strict and complicated exclusionary rules. However, when the evidence eventually passed the test, there are no limits to the different types of evidence that can be applied. When images are used, unclear features have to be accompanied with proper eyewitness reports, in order to resolve the deficiency. Therefore it can be concluded that satellite images as such are admissible, but have to be supported with further sufficient evidence. 4.4.6 United States

4.4.6.1. General rules on evidence admissibility in criminal proceedings

When evaluating the admissibility of evidence in US federal courts, the Federal Rules on Evidence (FRE) is the most important legal document.281 These rules, enacted in 1975, lay down the different

                                                                                                               278 P. ROBERTS and A.A.S. ZUCKERMAN, Criminal Evidence, Oxford, Oxford University Press, 2004, 15-16. 279 Ibid., 17. 280 BONN AGREEMENT, “Evidence required in different Bonn Agreement countries”, 2012, bonnagreement.org/eng/html/FEPO_manual/chapter_3.htm. 281 United States Act to establish rules of evidence for certain courts and proceedings, adopted on 2 January 1975 (Washington) PL 93-549, HR 5463. In force 2 January 1975.

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standards by which parties may prove their cases with sufficient evidence, both civil and criminal. The FRE is divided into eleven articles and each article is subsequently divided into different rules on evidence. Before evaluating the admissibility of remote sensing data in criminal proceedings, a distinction is made between the presentation of satellite images as evidence with or without the use of expert testimonies. All data needs to pass the FRE test, but when presented with expert testimony, federal courts put the data to the additional test found in Daubert v. Merrell Dow Pharmaceuticals, Inc.282 This case, decided in 1993, is the most recent Supreme Court decision on the criteria for the admissibility of evidence in federal courts. 283 Because remote sensing data is highly complex, the evidence will generally need to be explained and interpreted via expert testimony. If such is the case, courts will apply the Daubert test. The Daubert test prescribes that expert testimonials regarding scientific data is only admissible in court if the evidence is both ‘relevant and reliable’. To evaluate the criterion of ‘relevance’, the FRE rules 104(a) and 702. Rule 104(a) allows federal courts to inquire about the admissibility of evidence, which will be allowed when the scientific information applies to the facts in issue. Rule 702 discusses the role of expert witness testimony regarding scientific and technical information. The Supreme Court decided that expert witnesses must “assist the trier-of-fact to understand the evidence or to determine the fact in issue”. If so, than remote sensing evidence is relevant to be used in criminal proceedings. In order to meet the ‘reliability’, Daubert case found that “scientific validity establishes a standard of reliability”.284 To determine this scientific validity, the Supreme Court suggested five criteria:

a. The information needs to be derived by the scientific method: This criterion imposes a burden on remote sensing scientists to ensure the collected data were developed by generating hypotheses, testing them through experiments, and establishing conclusions.

b. Whether the information was subjected to peer review or publication: The Supreme Court found this criterion helpful, but not correlative in demonstrating reliability.

c. General acceptance by the scientific community: When the theory or technique that compiled the remote sensing data has been generally accepted by the scientific community, this proves to be a significant element to decide upon the reliability of the information. The number of citations in specialized magazines and scientists supporting these techniques can determine if the technique or theory enjoys general acceptance.

d. Potential for error: A good way to indicate if a technique is reliable, is to evaluate the potential for errors during each step of the data acquisition process: input, storage, transformation, output and use. Experts should document each step during the expert witness reports, especially the satellite image enhancement processes. To assess the potential flaws, federal courts will consider “computer programming errors, equipment malfunction, data entry errors, and the volume of electronic data”.

e. Standards: The last element to be taken into consideration in order to establish the reliability of satellite images are the standards employed as controls on technique. This includes the assessment of standards for the calibration of satellite instruments, the storage of digital information or the choice for particular class intervals. It is vital for scientists to prove these processes meet certain quality standards.

In all cases, the data needs to pass the FRE test. This implies the data needs to meet certain standards. Firstly; the evidence must be relevant to the case, meaning it must make a consequential fact more or less probable. Secondly, evidence must be authenticated. Sometimes data is self-authenticating such as maps compiled by the US government. Thirdly, the evidence must be founded.                                                                                                                282 William Daubert et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc., 509 US 579. 283 K.J. MARKOWITZ, “Legal Challenges and Market Rewards”, Duke Envtl.L. & Pol. 2001-2002, 243-253. 284 Ibid., 245.

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This includes the data needs to be accurate and reliable. In addition, the data must meet the hearsay test. When an image is admitted to make an assertion, the evidence may be subjected to on hearsay grounds. If so, the evidence will only be admissible if it falls under the exception to the hearsay rules. For example, Rules 803(§) and 803(8) FRE will allow the admission of hearsay evidence that was generated by computer for use as a business or public record.285

4.4.6.2. Conclusion

The US evidence admissibility system contains specific rules with regard to the use of remote sensing evidence in criminal proceedings, unlike the other four countries. Although this increases legal certainty, this system could obstruct the admissibility of remote sensing evidence from other MARPOL Contracting Parties because of the strict rules and tests applied by US federal courts. However, because the United States refused to ratify the LOSC, which implements the transfer of criminal proceedings between countries, this obstacle is not likely to obstruct these transfer procedures. 4.5 Conclusion When evaluating the different stages of the prosecution process, there are no visible obstructions to the use of satellite remote sensing images in both phases of the criminal process. In the first phase, the investigative phase, state authorities are allowed to collect and present all evidence gathered during the official investigation. This includes the use of satellite images; added with eyewitness reports, oil samples, formal reports, and extracts from the Oil Record Book. These elements are than transferred to the local prosecutor, who decides whether to press charges and bring the case before court. If so, the judge, or magistrates, will need to evaluate the evidence in order to determine the admissibility in the second phase of the prosecution process: the evidence admission phase. When evaluating these national standards, it becomes clear there are no explicit obstructions as well. However, this does not imply the use of satellite remote sensing in legal proceedings is therefore widely accepted. In most countries, except the United States, there are no rules or relevant case law, which accepts this type of evidence in criminal oil pollution proceedings. Due to the legal uncertainty surrounding this vital question, prosecution efforts by state authorities could become obstructed. In addition, the different national evidence admission standards reveal a difference between the civil law and common law systems. In common law countries, there are more formal rules and even tests, which determine the admissibility of audio-visual evidence. In the English legal system, rules are provided on the use of photographs and how to establish reliability and authenticity. For example, when an image is not entirely clear or blurred, it is stated that a subsequent eyewitness testimony could provide further insights and resolve the image deficiency. The US legal system goes even further and contains two tests to determine if a satellite image is relevant and reliable enough to be taken into consideration by federal courts. This is in stark contrast with the civil law system, which provides less or even no rules on the use of audio-visual material, especially satellite images. The main reason for this stark contrast is the different dynamics behind both systems. In the common law systems, high courts create precedents, which allow responding efficiently to new legal developments. In civil law systems, laws and regulations enacted by state authorities and legislative chambers prescribe the admissibility standards. Although this system provides more legal certainty, it is not easily amended which often results in lagging behind new developments in the legal world.

                                                                                                               285 K.J. MARKOWITZ, “Legal Challenges and Market Rewards”, Duke Envtl.L. & Pol. 2001-2002, 251.

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Conclusion The world’s oceans are in decline. Due to mass oil pollution, biodiversity shrinks and ecosystems disappear. Although vessel source pollution is not the biggest contributor to the annual oil input today, its share is significant. To tackle this continuous source of pollution, actions are taken by governments and international organizations to diminish the amount of annual oil input. By adopting operational discharge limits and enhancing vessel safety and equipment, important efforts have been made to reduce the operational and accidental oil pollution. However, illegal operational oil pollution remains the largest contributor to the annual input. Therefore, several initiatives have focused to prevent this form of pollution such as the adoption of the MARPOL treaty, which imposes discharges limitations. The UNCLOS has also contributed significantly by introducing enhanced cooperation between Contracting Parties to prevent and detect oil pollution. Over the years, tools to detect intentional oil pollution have developed extensively. In the beginning, coastal authorities used boats and patrols to detect and track offenders. Today, aircraft and satellites take over these patrols. One of the main advantages of this new ‘sensing’ technique is the possibility to monitor larger areas at the same time. In addition, high-tech sensors not only give confirmation an oil slick has been detected, but they have the ability to provide additional information on the slick as well such as the thickness and type of oil. When this tool is combined with the use of AIS radar techniques, investigators can back-track the movements of vessels in order to determine which vessel was responsible for the discharge. Although these new techniques are extremely promising to further decrease the amount of oil pollution, some questions remain. One of the main concerns is the use and admissibility of this remote sensing data in criminal legal proceedings. Therefore the main purpose of this thesis is to assess whether the current rules support this application of remote sensing data and, if not, to determine the feasibility and position of international rules to enhance its admissibility. In order to fulfill this purpose, the national evidence admissibility standards and enforcement procedures of five countries were analyzed: Belgium, France, the Netherlands, the United Kingdom and the United States. When evaluating these enforcement procedures, no visible obstacles were determined to the use of remote sensing data in criminal proceedings in these five countries. Most authors believe satellite images are therefore applicable in these countries, especially to support other types of evidence. However, on the other hand, there is no legislation present which allows the use of this data, except in the United States. Because of this highly ambiguous situation, effective prosecution of MARPOL violations could be compromised. This is especially the case when the prosecution is being transferred from one state to the other. If one state widely accepts the use of this satellite images, but the other state doesn’t, chances are the prosecution will fail if the criminal procedure transfers from the first state to the other. It is therefore necessary and feasible to adopt international regulations to fix the position of remote sensing evidence in legal proceedings. Several methods could be used to reach this objective. The first method would be the drafting of an international convention. Although this is the best way to harmonize international rules, this is the least realistic. The differences between countries and legislations around the world are too great to reach an effective agreement with a broad support in the international community. A more effective way could be to integrate these standards into an existing international agreement with broad international support. Two conventions would be suited: the

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MARPOL convention and the LOSC. However, when looking more closely, only the MARPOL convention would be fitted to implement these standards. This is mainly because MARPOL can easily be amended without the need to reach full unanimity among the Contracting Parties, which is in stark contrast to the LOSC. Due to slow and inflexible procedures, the LOSC is virtually impossible to amend. In addition, the United States does not recognize the LOSC. However, even though the MARPOL regulations could be easily amended, it is highly unlikely the international community will be ready to enhance cooperation in criminal proceedings and adopt universal evidence admission standards. Criminal codes and evidence admission standards still remain purely national matters. It is therefore recommended to first adopt these new standards at regional or state level. Especially the EU could be at the forefront of new regional legislation by adopting directives to harmonize these standards. In addition, other regional partnerships could take initiatives as well. The Bonn Agreement framework or the OSPAR framework could function as platforms to experience with these new standards. In order to initiate a change in regional or national legislation, the national and local legal communities must familiarize with satellite remote sensing data as evidence. Most legal practicians are not aware of the enormous possibilities of this new tool. Because of this lack of understanding and knowledge, the benefits in criminal cases are ignored. Therefore, it is of vital importance to raise awareness and to educate the legal sector on the advantages of satellite data in criminal proceedings. Fortunately, an increasing amount of scientists, state officials and legal professionals are aware of this situation and international forums start to put this topic on the agenda. It is only a matter of time before international or regional action is taken to solidify the position of this powerful detection tool in our legal societies. This would mean a next, crucial, step in diminishing illegal operational oil pollution and preserving our marine ecosystems and coral reefs to which all mankind depends.

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Magazines and newspapers BBC NEWS, “Elgin platform gas leak: Exclusion zone in place”, 27 March 2012, bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-17505448 BBC NEWS, “North Korea moves rocket into place for launch”, 9 April 2012, bbc.co.uk/news/world-asia-17650344. BBC NEWS, “World’s Oceans in Shocking Decline”, 20 June 2011, bbc.co.uk/news/science-environment-13796479. DE MORGEN, “Slechts 5 procent van illegal lozingen in Noordzee bestraft”, 27 February 2011. PBS NEWSHOUR, “New Estimate Puts Gulf Oil Leak at 205 Million Gallons”, 2 August 2010, pbs.org/newshour/rundown/2010/08/new-estimate-puts-oil-leak-at-49-million-barrels.html. USATODAY, “Land-based oil spills add up, too”, 2010, usatoday.com/news/nation/2010-06-29-land-spills_N.htm.

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Nederlandstalige samenvatting Introductie

Olievervuiling is al jaren een grondig probleem voor de mariene leefwereld over de hele wereld. In 1985 bereikte de globale olieconsumptie 2.8 miljard ton per jaar. In 2010 werd het verbruik gemeten op 4 miljard ton per jaar. Doordat het olieconsumptie jaar na jaar toeneemt, neemt ook het risico toe op ongevallen en illegale olielozingen, wat een grote druk legt op de fragiele balans in de oceanen. Door verscheidene ongevallen met olietankers in de jaren ’60 werd de dramatische impact die grote olievervuilingen kunnen hebben op het mariene milieu duidelijk. De internationale gemeenschap reageerde hierop door het aannemen van verscheidene conventies om dergelijke milieurampen te voorkomen. Toch zijn het niet de grote, gemediatiseerde ongevallen met olietankers die verantwoordelijk zijn voor de meerderheid van de olie die in zee komt door schepen. Het illegaal lozen van olie tijdens het normale gebruik van een schip blijkt namelijk voor meer vervuiling te zorgen. Deze thesis gaat dieper in op de mogelijkheden om dergelijke lozingen te verminderen en of deze technieken, zoals het gebruik van aardobservatiesatellieten, toegelaten kunnen worden in strafzaken om een beschuldigde te bestraffen. Daarbij wordt er vooral onderzocht of er mogelijke obstakels zijn die het gebruik van deze beelden beletten. Op basis hiervan kan er bepaald worden of er nood is aan een internationaal kader om de aanvaarding van deze bewijzen in nationale strafzaken te harmoniseren. Om deze analyse mogelijk te maken worden vijf landen onderzocht: België, Frankrijk, Nederland, het Verenigd Koninkrijk en de Verenigde Staten. Na een korte introductie over de verschillende bronnen van olievervuiling en de nood aan goede afdwingingsmechanismen, worden de verschillende technieken uitgelegd om dergelijke olievlekken op te sporen, naast het wettelijke kader van deze technieken. Het derde deel zal kort uitleggen wat het huidige kader is voor de preventie van olievervuiling op internationaal, regionaal en nationaal vlak. Het laatste deel zal trachten te onderzoeken of er mogelijke obstakels zijn voor de aanvaarding van satellietbeelden in strafzaken. Op basis hiervan kan bepaald worden of er nood is aan een internationaal kader. Bronnen van olievervuiling

In totaal zijn er drie verschillende bronnen die zorgen voor de lozing van olie in de zee: vervuiling afkomstig van het land, vervuiling afkomstig van schepen en vervuiling door natuurlijke bronnen. Onder vervuiling afkomstig van het land wordt verstaan de lozing van olie door grote fabrieken en raffinaderijen nabij zeehavens. Maar ook vervuiling afkomstig van steden is een belangrijke factor. Heel veel steden zijn vandaag de dag gebouwd langs een kustlijn, wat zorgt voor heel veel druk op het mariene milieu in de buurt. Ook luchtvervuiling, toxische deeltjes die neerslaan op het wateroppervlak uitgestoten door verkeer, huizen en industrie, behoort tot deze categorie. Onder vervuiling afkomstig van schepen worden twee elementen verstaan. Een eerste element is, zoals reeds aangehaald, bestaat uit vervuiling door ongevallen of door de operationele lozingen van olie door schepen. Het tweede element bestaat uit vervuiling door offshore boorplatforms. Deze platformen dienen voornamelijk voor de exploitatie van olie- en gasvelden in bijvoorbeeld de Noordzee. Schepen en boorplatformen zijn daarnaast ook verantwoordelijk voor luchtvervuiling, net zoals dat het geval is bij vervuilingsbronnen afkomstig van het land. De derde vorm van vervuiling, vervuiling door natuurlijke bronnen, is het gevolg van scheuren in de aardkorst die ervoor zorgen dat ondergrondse oliereservoirs beginnen te lekken. Deze bron van vervuiling is vandaag de dag verantwoordelijk voor het grootste deel van de olie die in zee terecht komt. Toch moeten deze bevindingen met een korrel zout genomen worden. Zo is het

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nog steeds niet mogelijk op een accurate manier al deze bronnen op te sporen en precies te bepalen wat het aandeel is in de totale instroom van olie in de oceanen. Ook zal deze bron geleidelijk aan opdrogen als meer en meer oliereservoirs uitgeput raken en zo de druk in de reservoirs zal afnemen. Door deze overvloed aan bronnen van vervuiling is er nood aan een krachtdadig beleid. Toch is het evenwel niet nodig nieuwe, bijkomende regels op te stellen om deze vervuiling terug te dringen. Volgens statistieken zijn de huidige regels voldoende om de impact op ons mariene milieu te beperken. Wat echter wel vereist is, is een effectief en functioneel afdwingingsbeleid. Cijfers van Ngo’s wijzen uit dat de totale hoeveelheid olie die jaarlijks in zee komt 93% hoger ligt als slechts 86% van de actoren zich houdt aan de internationale regels, in tegenstelling tot de hoeveelheid indien iedereen de regels zou naleven. Om deze redenen is het van vitaal belang de bestaande regels op een effectieve manier af te dwingen. Om dit mogelijk te maken wordt gebruik gemaakt van diverse aardobservatietechnieken. Het gebruik van aardobservatietechnieken voor het opsporen van olievlekken

Om het opsporen van olievlekken zo efficiënt mogelijk te maken doet een meerderheid van de kusthavenautoriteiten beroep op het gebruik van aardobservatietechnieken. Dit bestaat enerzijds uit het gebruik van vliegtuigen, uitgerust met hoogtechnologische sensoren, bemand door ervaren deskundigen die gemachtigd zijn vaststellingen te doen. Dit laat toe op een snel tempo grote gebieden te controleren op overtredingen. Anderzijds bestaat dit uit het aanwenden van satellieten, eveneens uitgerust met dergelijke sensoren, om nog grotere gebieden in één afbeelding weer te geven en de kans groter te maken om olievlekken te ontdekken. Er zijn gemiddeld een zestal technieken om olievervuiling op te sporen via sensoren. De eerste is de Synthetic Aperture Radar of SAR. Deze sensor zend impulsen uit vanuit het vliegtuig of de satelliet naar het aardoppervlak. Deze impulsen worden teruggekaatst en opgevangen door de sensor. Wanneer een olievlek aanwezig is, zullen de signalen verstoord of helemaal niet terugkeren. Het voordeel van deze techniek is dat deze onafhankelijk is van slechte weersomstandigheden. De tweede techniek wordt de Side-Looking Airbirne Radar (SLAR) genoemd. Deze sensoren werken op dezelfde manier als SAR sensoren, maar hebben een minder groot bereik aangezien ze enkel op vliegtuigen gebruikt worden. Het voordeel is dan weer dat ze een grotere mate van detail vertonen tegenover SAR beelden. De derde techniek is tweevoudig: er wordt immers gebruik gemaakt van een Infrarode en Ultraviolette scanner om olielozingen op te sporen. De ultraviolette scanner registreert de golflengten van stralen gereflecteerd door de zon. Indien een olievlek zich op het wateroppervlak bevindt, worden er kortere golflengten geregistreerd. De infrarode scanner is gebouwd om temperatuurverschillen waar te nemen op het wateroppervlak. Zo wordt olie op het wateroppervlak doorgaans waargenomen door een koudere vlek. De vierde techniek is de Microwave Radiometer (MWR). Deze techniek registreert microgolven gereflecteerd op het wateroppervlak. Indien er een variatie waargenomen wordt in deze golven, kan men besluiten dat er zich mogelijk een olievlek bevindt op het wateroppervlak. Deze techniek is bijzonder nuttig omdat deze bijna volledig weersonafhankelijk is en op een precieze manier de dikte van de olievlek weet waar te nemen. De vijfde techniek heet de Laser Fluorescence Sensor (LFS) en maakt gebruik van de kracht van olie om licht op te slorpen. Hierdoor worden fluorescerende stralen afgegeven die waargenomen kunnen worden door de LFS. De laatste techniek bestaat uit de visuele inspectie van de bemanning aan boord van een vliegtuig. Indien zij een olievlek spotten kunnen zij hier een ooggetuigenverslag van opstellen die van grote waarde is bij eventuele strafzaken. Deze techniek is bijzonder hoopvol voor het snel en efficiënt opsporen van olievlekken. Wanneer een satellietbeeld een mogelijk spoor heeft ontdekt, kunnen de luchtobservatievliegtuigen gemakkelijk naar deze plek geleid worden om vaststellingen te doen. Bovendien maakt men tevens gebruik van de Automatic Identification System (AIS) om eventuele overtreders op te sporen. Indien de vlek zichtbaar

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is, maar het schip verdwenen kan er via de AIS bij wijze van spreken teruggegaan worden in de tijd om zo te constateren welk schip zich ten tijde van de lozing op deze exacte plaats bevond. Ondanks deze baanbrekende technieken, bestaat er veel onduidelijkheid over de juridische positie van deze techniek in de internationale gemeenschap. Zo is er geen eenduidige definitie van het concept ‘aardobservatie’ opgenomen in de internationale verdragen. Bovendien wordt nergens expliciet gesproken over deze techniek. Toch zijn er enkele juridische teksten, al dan niet bindend, die van toepassing zijn op aardobservatie. Zo kan men op internationaal vlak de Outer Space Treaty bij naam noemen. Dit verdrag uit 1967 bepaalt dat de ruimte voorbij de grens van het gewone luchtruim, enkel kan aangewend worden voor vreedzame doeleinden. Omdat satellieten de facto steeds in de ruimte vertoeven, vallen zij indirect onder dit verdrag. Het tweede juridische document, hoewel niet bindend, is een resolutie van de Algemene Vergadering van de VN. In 1986 werden namelijk de UN Remote Sensing Principles aangenomen. Deze basisprincipes moeten erop toezien dat het gebruik van aardobservatietechnieken legaal is en zo gebruikt wordt. Toch kan, door de beperkte steun van landen aan deze resolutie, er niet gesproken worden van een echte bevestiging van die legaliteit. Om die redenen wordt sinds lang geprobeerd hieromtrent een internationaal verdrag op te stellen. Naast deze twee juridische documenten, wordt op internationaal vlak ook goed werk geleverd door de UNCOPUOS, de VN Commissie voor het vreedzaam gebruik van de ruimte en de UNISPACE Conferentie, dat tot doel heeft het ruimterecht op een progressieve manier te ontwikkelen. Daarnaast zijn er vele bilaterale verdragen gesloten omtrent het gebruik van aardobservatietechnieken en de distributie van deze data. Op deze manier werden enkele grotere samenwerkingsverbanden gesloten zoals te zien was bij de LANDSAT overeenkomsten in de jaren ’80. Hoewel er reeds verscheidene pogingen ondernomen zijn om aardobservatie een soliede juridische positie te geven, zijn al deze pogingen tot op vandaag mislukt. Toch ziet het ernaar uit dat door het afsluiten van bilaterale en regionale verdragen zo kan toegewerkt worden naar een globalere juridische positie. Het internationaal kader voor de preventie van illegale olielozingen op zee

Verscheidene initiatieven zijn genomen op internationaal, nationaal en regionaal vlak om verontreiniging door illegale olielozingen terug te dringen. Op internationaal vlak kunnen drie belangrijke verdragen genoemd worden: als eerste het MARPOL verdrag, ten tweede het VN Zeerechtverdrag en ten derde de SOLAS Conventie. Het MARPOL verdrag (MARine POLlution), goedgekeurd in 1973 en in werking getreden na het aannemen van een Protocol in 1978, is in essentie gericht op het terugdringen van verscheidene soorten vervuiling zoals olievervuiling, vervuiling door chemicaliën, vervuiling door scheepsafval of door luchtverontreiniging. Elk verontreinigingsprobleem wordt behandeld in een afgezonderde annex bij het MARPOL verdrag. Enkel de eerste twee annexen, deze over olievervuiling en de vervuiling door chemicaliën, zijn verplicht voor de contractspartijen. Annex I gaat over de preventie van operationele olielozingen op zee door olietankers en andere schepen. Dat probeert men terug te dringen op twee manieren: enerzijds worden er limieten opgelegd aan de toegelaten hoeveelheid olie dat geloosd mag worden. Om unieke mariene gebieden te beschermen wordt hierbij gebruik gemaakt van special mariene zones waar niet of in veel mindere mate olie geloosd mag worden. De tweede manier om dergelijke vervuiling te voorkomen bestaat uit het opleggen van verplichtingen op het vlak van uitrustingen en administratie. Wat de uitrusting betreft, zijn schepen in sommige gevallen verplicht om een oliefilter aan boord te houden of is men verplicht speciale technieken te gebruiken om op een milieuvriendelijke manier de cargotanks schoon te maken. Daarnaast worden er ook voorwaarden opgelegd aan de bouw. Zo moeten alle olietankers vandaag de dag uitgerust zijn met een dubbele romp. Wat de administratieve verplichtingen betreft

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kan er onmiddellijk gewezen worden op de vereiste om enkel op zee te varen indien men in het bezit is van MARPOL certificaten. Ook is het nodig een oliejournaal en een laadjournaal bij te houden. Een oliejournaal wordt aangevuld indien er het schip olie loost in zee. Dit kan ofwel bewust of onbewust gebeuren, bv. na een technisch defect of een ongeval. Een laadjournaal moet aangevuld worden wanneer nieuwe olie op het schip geladen wordt. Zo kan men achteraf snel en gemakkelijk achterhalen welk soort olie er aanwezig was op het schip en matchen met het type olie gevonden op zee. De naleving van de MARPOL verdragen wordt opgesplitst over drie soorten staten: ten eerste de vlaggenstaat, ten tweede de kuststaat en ten derde de havenstaat. Vlaggenstaten hebben de verplichting om ervoor te zorgen dat alle schepen de MARPOL regelgeving respecteren en daarbij ook een effectieve afdwinging te voorzien met proportionele straffen. Havenstaten hebben de bevoegdheid om schepen die in hun haven aanmeren, te onderzoeken of deze de MARPOL verplichtingen, zoals deze omtrent uitrusting en administratie, nagekomen zijn. Om deze controles te vergemakkelijken worden Memoranda of Understanding (MoUs) afgesloten. Zo zijn worden controles beter op elkaar afgestemd en wordt er effectiever gecontroleerd. De bekendste is deze van Parijs, waar België, Frankrijk, Nederland en het Verenigd Koninkrijk partij van zijn. Ook kuststaten kunnen de MARPOL regels afdwingen in geval er een illegale lozing plaatsvond in hun territoriale wateren. Het tweede belangrijke verdrag is het VN Zeerechtverdrag (Law of the Sea Convention - LOSC). Hoewel dit verdrag voornamelijk alle rechten en verplichtingen die van toepassing zijn op de maritieme context wil bevatten, zijn er ook regels voorzien om de vervuiling te beperken. Ook hier wordt teruggegrepen naar de klassieke driedeling vlaggenstaat, havenstaat en kuststaat. Een van de grootste vernieuwingen die de LOSC teweegbracht is de verschuiving van de primaire verantwoordelijkheid van de vlaggenstaat om de strafvordering uit te oefenen tegen schepen die overtredingen begingen, naar de andere twee staten. Dit kwam voornamelijk doordat vlaggenstaten in het verleden weinig interesse toonden om vervuilers effectief te vervolgen. Door deze verschuiving is het mogelijk om deze strafvordering in de havenstaat of kuststaat te voeren, waardoor de kans op vervolging en veroordeling groter wordt. Ook wordt er voorzien in een overdrachtsmechanisme tussen vlaggenstaten, havenstaten en kuststaten wat betreft de strafvervolging. Op die manier zal steeds gestreefd worden dat de meest geschikte staat de strafvordering uitoefent. Het derde internationale verdrag is de SOLAS Conventie. Initieel gericht tot de veiligheid van mensenlevens op zee, voorziet deze Conventie eveneens in enkele regels om mariene vervuiling te voorkomen. Zo wordt er voorzien dat bepaalde classificatiemaatschappijen de bevoegdheid hebben schepen te inspecteren op de toepasselijke veiligheidsvoorschriften, wat ook de veiligheid van het mariene milieu inhoudt. Ook biedt de SOLAS conventie een wettelijke basis voor de implementatie van de AIS radar, verplicht op bepaalde categorieën van schepen. Naast deze internationale instrumenten wordt er ook op regionaal vlak voorzien in regels om een optimale afdwinging te garanderen. Zo heeft de EU sinds de rampen met de olietankers Erika en Prestige voor de Spaanse en Franse kust, een voortrekkersrol opgenomen om de mariene veiligheid zoveel als mogelijk te waarborgen. Een van de belangrijkste verwezenlijkingen was de een versnelling van het uitfaseringsplan voor tankers met een enkele romp. In het eerste plan werd volledige uitfasering pas voorzien in 2026. Door unilaterale acties na beide olierampen zijn normaliter sinds 2010 alle tankers met een enkele romp verboden in havens van MARPOL lidstaten. Daarnaast voorziet de EU in het opzetten van verscheidene agentschappen en organisaties om voldoende informatie te verzamelen omtrent het mariene milieu en deze te delen met alle relevante actoren. Zo heeft men in 2007 CleanSeaNet opgericht om de distributie van aardobservatiebeelden te vergemakkelijken voor lidstaten.

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Een van de belangrijkste regionale samenwerkingsverbanden is het Bonn Agreement. Deze overeenkomst voorziet in een samenwerking om olievervuiling tegen te gaan in de Noordzee en de Noordoostelijke Atlantische regio. Een van de belangrijkste facetten hiervan is het organiseren van een gecoördineerd luchttoezicht boven deze regio’s. Hierdoor kan de monitoring op een efficiënte manier verlopen. Ook voorziet het Bonn Agreement in een optimale uitwisseling van informatie tussen lidstaten. Deze initiatieven zorgen voor een verhoogde monitoring en detectiegraad. Om daarnaast ook een optimale afdwinging te bewerkstelligen, wordt beroep gedaan op het Noordzeenetwerk van Onderzoekers en Aanklagers (NSN). Dit netwerk, dat onder de OSPAR Convention valt, de conventie gericht tegen de vervuiling van de Noordzee en Noord-Atlantische regio, is voornamelijk verantwoordelijk voor de afdwinging van deze internationale regels door het promoten van de overdracht van bewijsstukken en door voorlichting te geven over de procedures aan de relevante autoriteiten. Ook in de Verenigde Staten is voorzien in een preventiesysteem tegen de vervuiling door schepen. De Verenigde Staten hebben het MARPOL verdrag geratificeerd en geïmplementeerd in de Act to Prevent Pollution from Ships (APPS). Toch hebben zij de LOSC niet geratificeerd. Bovendien is de VS geen lid van de MARPOL MoUs die voorzien in een gecoördineerd havenstaattoezicht. Dit leidt ertoe dat het Amerikaanse systeem vooral gebaseerd is op het APPS en dus in feite als apart systeem fungeert tussen diverse regionale samenwerkingsverbanden. De belangrijkste vorm van detectie van schepen is door middel van inspecties op zee of in de haven, gevolgd door de detectie met behulp van aardobservatietechnieken. Het derde detectiemiddel is uniek in de Westerse wereld. Zo voorziet de Amerikaanse wetgeving een fikse beloning voor bemanning of havenpersoneel die een gouden tip kunnen leveren omtrent illegale lozingspraktijken in de haven of op zee. Hierdoor probeert de Amerikaanse overheid zoveel mogelijk partijen aan te zetten tot het opbiechten van overtredingen en het meewerken aan controles. Het gebruik van satellietbeelden in strafzaken

Om op een goede manier te evalueren of het nuttig is om internationale regels op te stellen die het gebruik van satellietbeelden toelaat in strafzaken, moet eerst onderzocht worden of er obstakels zijn voor het gebruik van satellietbeelden in nationale strafprocedures. Elke overheid heeft zijn eigen set van procedures om de internationale regelgeving af te dwingen. Deze procedures worden opgedeeld in twee fases. De eerste fase behandelt de onderzoeksfase en de bewijsgaring van olievervuiling. De tweede fase behandelt de strafprocedure zelf en gaat dieper in op de verschillende aanvaardingsstandaarden voor het toelaten van bewijs in deze nationale procedures. De eerste fase loopt min of meer op dezelfde manier in alle vijf de landen die voor deze thesis onderzocht werden. Zo zijn er in elk land ambtenaren en speciale officieren aangesteld die processen-verbaal mogen opmaken over de uitgevoerde inspecties en het vergaarde bewijsmateriaal. In de meeste gevallen behoren deze ambtenaren tot de kustwacht of aanverwante agentschappen. Wanneer voldoende bewijs verzameld is omtrent de overtreding, dan wordt het hele dossier overgezonden naar de lokale procureur die dan kan beslissen over de volgende stappen. In alle vijf de landen is er niets voorzien omtrent de toegelaten bewijsmiddelen, in principe is elke bewijsmiddel dus toegelaten om de schuld van de overtreder te bewijzen. De procedure om een zaak uiteindelijk aanhangig te maken bij de strafrechter is wel heel verschillend van land tot land. Desalniettemin heeft dit geen invloed op de verdere behandeling of beoordeling van het verzamelde bewijs door de rechter. Alvorens de strafprocedure wordt ingeleid, hebben verscheidene staten de mogelijkheid om de strafprocedure naar zich toe te trekken en zo de verdachte te veroordelen op basis van de eigen nationale wetten. Ook is het mogelijk om een andere staat te verzoeken deze strafprocedure op te

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starten. Een en ander staat beschreven in de LOSC. Deze overdrachten van procedures zijn enkel mogelijk tussen België, Frankrijk, Nederland en het Verenigd Koninkrijk. Aangezien de Verenigde Staten nagelaten hebben deze conventie te ratificeren is een overdracht bijgevolg onmogelijk. De tweede fase in de afdwinging van de internationale regelgeving bestaat uit de beoordeling van de voorgestelde bewijzen en het onderzoek naar de toelaatbaarheid ervan. Dit verloopt niet altijd op dezelfde manier in alle vijf de landen zoals het geval is voor de eerste fase. Zo is er een verschil merkbaar tussen de aanpak tussen civil law, het Verenigd Koninkrijk en de Verenigde Staten, en common law landen, waaronder België, Frankrijk en Nederland. De civil law landen hebben nagenoeg geen regelgeving voor wat betreft de aanvaarding van satellietbeelden in strafzaken. Daar heerst het principe dat de rechter vrij is om alle bewijsmiddelen te beoordelen naar eigen goeddunken. Dit vrije bewijsstelsel kan ingeperkt worden door wettelijke bepalingen, maar voor satellietbeelden bestaan geen dergelijke beperkingen. In de Nederlandse rechtsorde zijn de bewijsregels strikter dan in de Belgische en Franse rechtsorde, maar de aanvaarding van audiovisuele beelden is in ieder geval toegelaten. Dit staat in contrast met de common law landen, waar expliciete regels voorzien zijn voor de aanvaarding van fotografisch bewijs. Zo voorziet het Engels systeem dat onduidelijke foto’s kunnen uitgelegd worden aan de hand van getuigenverslagen. De Amerikaanse rechtsorde gaat zelfs een stap verder en heeft duidelijke regelen uitgewerkt die al dan niet satellietbeelden toelaten in strafzaken. Een van de hoofdredenen voor dit grote verschil is het verschil in de manier waarop recht wordt gecreëerd in beide stelsels. Zo wordt in het common law stelsel rechte in het leven geroepen door precedentenbeslissingen, genomen door de hogere gerechtshoven. Dit laat toe om snel in te spelen op actuele of technologische ontwikkelingen. In het civil law stelsel gebeurt dit anders. Daar bepalen wetten de mate waarin bewijsmiddelen en de aanvaarding ervan geregeld zijn. Doordat iedere wijziging een parlementaire procedure moet ondergaan, zijn wijzigingen minder snel aan de orde. Conclusie

Satellietbeelden worden in elk van de vijf landen niet verboden door de nationale wetgeving. Toch worden deze satellietbeelden ook niet expliciet toegelaten. Doordat er in geen van de vijf landen, uitgezonderd de Verenigde Staten, nog geen enkele strafzaak is beslist op basis van of met behulp van satellietbeelden, is het bijzonder moeilijk is te schatten hoe rechters met dit bewijs zullen omgaan. Dit zorgt voor rechtsonzekerheid en kan op termijn de effectieve afdwinging van internationale regels ondermijnen. Om deze redenen lijkt het mij aangewezen om te streven naar een internationale standaard voor de aanvaarding van bewijs in strafzaken. Om dit te bereiken zijn verschillende kanalen voorhanden. Men kan in de eerste plaats denken aan het opstellen van een internationaal verdrag. Dit is echter een weinig realistische oplossing. Standaarden voor het toelaten van bewijs in strafzaken blijft nog steeds louter nationaal geregeld en staten hebben meestal de neiging om zo weinig mogelijk bevoegdheden uit hanen te geven. Men kan evenwel denken aan de implementering van dergelijke standaarden in een internationaal aanvaard verdrag zoals het MARPOL verdrag of de LOSC. Toch moet men ook hier realistisch blijven. De LOSC is door zijn logge amenderingsprocedure praktisch niet te amenderen. Hoewel het MARPOL verdrag wel voorziet in een soepele amendering, blijft de vraag of staten bereid zullen zijn om dergelijke standaarden over te nemen. Om deze redenen is het aangewezen om eerst te vertrekken op nationaal of internationaal niveau. Maar om deze dynamiek in beweging te zetten, is het vereist dat de gemiddelde jurist meer vertrouwd raakt met dit apart type bewijs. Hierdoor kan het vertrouwen om dit bewijsmiddel aan te wenden

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vergroten, wat kan leiden tot duidelijkere regels op nationaal niveau of zelfs regionaal niveau. Ook kan deze dynamiek onmiddellijk ingezet worden op regionaal niveau. Zo zouden de OSPAR Conventie of het Bonn Agreement kunnen dienen als platform voor het experimenteren met zulke nieuwe initiatieven. Jaar na jaar komt dit probleem meer onder de aandacht. Het is dan ook mijn hoop dat een goed en efficiënt kader kan gecreëerd worden. Dit zou een volgende, cruciale, stap betekenen in de strijd tegen vervuiling en voor de bescherming van mariene ecosystemen en koraalriffen over de hele wereld.