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Published online by Cambridge University Press: 27 February 2017
1 Article 228 (“Suspension and restrictions on institution of proceedings”) of the LOS Convention, opened for signature Dec. 10, 1982, 1833 UNTS 397, reprinted in 21ILM 1261 (1982), provides:
Proceedings to impose penalties in respect of any violation of applicable laws and regulations or international rules and standards relating to the prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the State instituting proceedings shall be suspended upon the taking of proceedings to impose penalties in respect of corresponding charges by the flag State within six months of the date on which proceedings were first instituted, unless those proceedings relate to a case of major damage to the coastal State or the flag State in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels. The flag State shall in due course make available to the State previously instituting proceedings a full dossier of the case and the records of the proceedings, whenever the flag State has requested the suspension of proceedings in accordance with this article.
When proceedings instituted by the flag State have been brought to a conclusion, the suspended proceedings shall be terminated. Upon payment of costs incurred in respect of such proceedings, any bond posted or other financial security provided in connection with the suspended proceedings shall be released by the coastal State.
Proceedings to impose penalties on foreign vessels shall not be instituted after the expiry of three years from the date on which the violation was committed, and shall not be taken by any State in the event of proceedings having been instituted by another State subject to the provisions set out in paragraph 1.
The provisions of this article are without prejudice to the right of the flag State to take any measures, including proceedings to impose penalties, according to its laws irrespective of prior proceedings by another State.
2 Nov. 2, 1973, 1340 UNTS 184.
3 Feb. 17, 1978, 1340 UNTS 61.
4 The quotations from judicial decisions have been translated by the author.
5 Cour de cassation (chambre criminelle), Décision no. 07-87362 (arrêt), May 5, 2009, Bull. Crim. 2009, no. 85, available at http://www.legifrance.gouv.fr/initRechJuriJudi.do.
6 This question is one of internal French procedure regarding the authority of criminal courts to award civil damages; Article 229 makes clear that the Convention does not affect the institution of civil proceedings in respect of loss or damage resulting from pollution.
7 Cour de cassation (chambre criminelle), Décision no. 07-87931 (arret), May 5, 2009, Bull. Crim. 2009, no. 85, available at http://www.legifrance.gouv.fr/initRechJuriJudi.do.
8 4 United Nations Convention on The Law of the Sea, 1982. A Commentary 348–59 (Myron, H. Nordquist ed., 1985).Google Scholar
9 In La préservation du milieu marin , in Traité du Nouveau Droit de la mer 1079, 1022–23 (René, Jean Dupuy & Daniel, Vignes eds., 1985)Google Scholar, Pierre-Marie, Dupuy and Martine, Rémond-Guilloud address this issue in three lines. In his major work, Coastal State Jurisdiction over Vessel-Source Pollution (1998), Erik Japp Molenaar considers Article 228 in three pages (pp. 462–64)Google Scholar. In The Law of the Sea (3d ed. 1999), Churchill and Lowe barely mention the provision (pp. 350-51). Likewise, in “Marine Pollution Under the Law of the Sea Convention,” 79 AJIL 347 (1985), Alan Boyle passes cursorily over this matter.
10 O’Connell, D. P. 2 The International Law of the Sea 994 (Shearer, I. A. ed., 1984).Google Scholar
11 Vessel-Source Pollution and Coastal State Jurisdiction: The Work of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution (1991–2000) (Erik, Franckx ed., 2001)Google Scholar.
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