Sanctions
Monetary penalties probably represent the most appropriate enforcement measure for targeting the most relevant persons involved in the violation and taking the individual circumstances into account in each case. It is also specifically mandated in UNCLOS article 230.
There may not be a single ideal type of penalties that fits the legal systems of all Northern European SECA states. Already the very limited number of national laws that have been referred to in this article illustrate that several alternative solutions apply regarding all key aspects of the sanction. The most effective format of sanctions, in terms of successful application, appears to be the administrative penalties, acting as a complement to criminal penalties. In many states, however, the level of administrative penalties is too low to be effective in the present context.
In order to ensure the effectiveness, consistency and proportionality of sanctions, key principles should be established in advance, at national or regional level. It seems more important that such principles govern the main features of the sanctions, in terms of liable persons, proof, culpability thresholds and the mechanisms for calculating the penalty, than specifying their formal format. A key to successful enforcement of sanctions is that the process operates with a certain swiftness, which allows other measures to be taken to support the effective enforcement of the sanction. Swiftness, in turn, calls for simplified mechanisms for identifying the liable person and demonstrating the required level of negligence, as well as a pre-made scheme for the calculation of the penalty. Harmonisation at regional - or EU - level is supported by consistency arguments and by the fact that the economic benefit of non-compliance for ship operators does not differ from on port states to another. Pre-established principles for calculating the level of penalties would also strengthen the argument that the sanctions, which will necessarily be sizable, are fairly calculated and proportionate with respect to the offence in question.
International and EU law do not stand in the way for more powerful sanctions. The jurisdictional rules provide certain safeguards to protect the interests of ships, notably by limiting sanctions to monetary penalties and by providing for a prompt release of ships that are held back during the investigations. In addition, the UNCLOS safeguards provide for a right of flag state pre-emption in the proceedings for violations that have been committed beyond the territorial sea of the state instituting the proceedings. Apart from such express limitations, it is clear that port states, through the principle of territorial sovereignty and the status of internal waters, have an in principle unlimited jurisdiction over foreign vessels, in terms of prescription as well as enforcement. This position is further reinforced by the absence of a right for commercial ships to access foreign ports in general international law, which a fortiori implies broad rights for port states to place conditions for access. UNCLOS is relatively silent on the balancing of the interests involved in the exercise of port state jurisdiction and apart from some generic rules on the prohibition of discrimination or abuse of rights, essentially leaves the matter to more general principles of international law that are not very helpful for establishing the limits for how onerous the penalties can be.
The relevant technical rules purposely leave significant discretion to states to adopt their own sanction system as they see most appropriate for the purpose. Yet they require that sanctions be effective, proportionate and sufficiently severe to discourage violations. Neither MARPOL nor the Directive, or subsequent guidance documents to support their implementation, offer much regulatory advice on the design of the penalties, but certain principles can nevertheless be inferred from the requirements of effectiveness, dissuasiveness and proportionality.
Effectiveness and dissuasiveness are closely related. They both imply that it should be the economic benefit of the infringement, rather than its effect on the port state or the environment, that should guide the size of the penalty. This in turn suggests that the target of the sanctions should be the corporations who profit from the infringement. A high penalty is called for by the significant economic gains of non-compliance and supported by the absence of other mechanisms to deterrence, such as civil liability. Linking the penalty to the economic benefits also suggests that the size of the penalty should be linked to the severity of the violation, in geographical terms as well as in terms of actual sulphur content. Purely matching the financial gain would not amount to deterrence and the state has a large discretion to exceed this. It may also be noted that even if the obligation to comply with the air emission requirements only extended to the coastal waters of the port state, as is the requirement under the Sulphur Directive, a port state may still impose sanctions on non-complying ships in a manner that takes into account the ship's operations (and financial benefits) beyond those waters. The basis for calculating the economic benefit of the violation is, in other words, not limited to the area in which the obligation applies.
The limits for how onerous the sanctions can be will mainly placed by the requirement of proportionality, which features both in general international law and, in a somewhat more elaborated form, in EU law. This requirement entails several elements, but in essence boils down to the principle that enforcement should not exceed what is necessary to meet the objectives of the underlying measure. While the threshold of what is necessary to meet the objectives of the sulphur requirements, as was noted above, is quite high, proportionality suggests, inter alia, that the individual circumstances of the case should be taken into account. A flat fee sanction, which is imposed independently of severity, duration or level of negligence is, for example, unlikely to satisfy the proportionality requirement.