Pollution on the high seas: from jurisdiction to enforcement and all of the moving parts in between

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Authors: Emily C. Hall and Bryan J. O'Neill
Date: Summer 2016
From: Loyola Maritime Law Journal(Vol. 15, Issue 2)
Publisher: Loyola University New Orleans, School of Law
Document Type: Article
Length: 18,241 words

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TABLE OF CONTENTS I. Introduction II. History--Relevant Law and Cases A. MARPOL B. APPS C. Relevant Case Law III. United States v. Pena A. Other Important Cases Leading up to Pena B. Facts and Procedural History of Pena C. Why Pena Got It Right and How It Changes the Law IV. Where Should We Go from Here? A. Universal Jurisdiction B. Extraterritorial Jurisdiction; APPS to Mimic the MDLEA C. APPS to Mimic 13 CCR [section] 2299.2. V. Jurisdiction as It Stands Now--Enforcement Problem VI. Sarbanes-Oxley VII. Enforcement and Whistleblower Provisions A. APPS B. Sarbanes-Oxley VIII. International Issues IX. Unforeseen Consequences--Does APPS Go Too Far? A. Angelex Ltd. v. United States B. Watervale Marine Co., Ltd. v. United States Department of Homeland Security X. Conclusion

I. INTRODUCTION

Environmental disasters like the Exxon-Valdez spill or the Deepwater Horizon explosion can easily be assumed to be the heaviest hitting sources of oil pollution in our oceans. (1) Events of this nature, though traumatic, only account for roughly 10% of marine oil pollution, while standard operating procedures of shipping are responsible for almost half. (2) Framed differently, "the illegal discharge of oil into the sea through routine operations is equal to over eight times the Exxon Valdez spill ... every year." (3)

Prior to World War II, the common practice of managing waste onboard ships was to "throw it into Davy Jones' locker." (4) In response to oil pollution encroaching on the coast of Britain, the International Convention for the Prevention of Pollution in the Sea by Oil (OILPOL 54) was drafted in 1954. (5) It was adopted and implemented by "the thirty-two countries responsible for the majority of merchant shipping tonnage in the world." (6) OILPOL 54 set standards for permissible discharges and oil discharge prohibitions, such as no intentional oil discharge within fifty miles of a shoreline. (7)

Compliance with OILPOL 54 was difficult and enforcement was poor. By the early 1960s it was amended, but these amendments "failed to effectively increase compliance." (8) In an attempt to make OILPOL 54 more effective, an international conference was held by the International Maritime Organization (then known as the Inter-Governmental Maritime Consultative Organization). (9) The result of the conference was the creation of MARPOL; it was adopted in 1973 and subsequently modified by the Protocol of 1978. (10) As the governing convention concerning and related to marine pollution, it is in place to "achieve the complete elimination of intentional pollution ... by oil and other harmful substances and the minimization of accidental discharge of such substances." (11)

Under MARPOL, signatory Nation States can enforce compliance on their own ships, regardless of location, and require MARPOL standards be met by foreign flagged ships located in their territorial waters. (12) President Jimmy Carter signed the treaty in 1978, and the United States ratified it in 1980. (13) To date, 152 nations have ratified the treaty, "representing ninety-nine percent of the world's shipping tonnage." (14)

Because MARPOL is not self-executing, (15) the United States implemented the provisions...

Source Citation

Source Citation
Hall, Emily C., and Bryan J. O'Neill. "Pollution on the high seas: from jurisdiction to enforcement and all of the moving parts in between." Loyola Maritime Law Journal, vol. 15, no. 2, 2016, p. 375+. Accessed 19 Sept. 2020.
  

Gale Document Number: GALE|A470160754