A long saga with a very new twist which should make even the most strident critic of international courts think again.
On 12 December 1999, the Erika sank some 60 nautical miles off the Brittany coast, spilling some 20,000 tonnes of heavy fuel which in due course polluted some 400 km of the French coastline. On 24 May 2012, the Cour de Cassation is due to rule on whether Total is criminally liable for the spill. Previous courts (the Criminal Court of First Instance, and the Court of Appeal in Paris) had said that it was. But now Advocate-General Boccon-Gibod has recently advised the Cour de Cassation that Total has no criminal liability. The problem, as often with international environmental issues, particularly criminal ones, is the jurisdiction for the offence charged – can, in this instance, the French prosecute this crime, even though someone can also do so somewhere else? What better reason for the founding of an international environmental court – a forum where one tribunal can seek to enforce common rules against those responsible for major pollution, wherever the pollution occurs and wherever the parties may be resident.
The global nature of the problem can be seen from a litany of the parties involved in this disaster. The Erika was owned by a Maltese company, controlled by two Liberian corporations whose shareholder was Italian. The vessel was chartered by a Panamanian subsidiary of Total, which had concluded a transportation contract with a UK Total subsidiary. The vessel had been certified as seaworthy by an Italian shipping classification society, RINA, somewhat in the frame since the cause of the sinking was widespread corrosion causing the vessel to break into two – the bow section can be seen on the photograph. The oil was owned by a Bermudian subsidiary of Total. The oil was to be transported to Italy for sale to ENEL, the Italian electricity generator. So the potential fora in the case were (i) France (ii) Malta (as flag state of the Erika) (iii) Liberia (iv) Italy. But the only damage to land was caused in France, and not surprisingly, the French authorities were keen to prosecute the major French-based multi-national whose negligence it was believed contributed to the spill. Total’s case had been that, just because it had selected the vessel the year before the charter, it could not be guilty for having caused the spill, but this does not seem to have convinced the courts below.
So far as can be judged from recent press reports of the Advocate-General’s opinion in the French legal system (unlike those of the AG to the CJEU, not available on the internet), he concluded that there was a fatal problem for the prosecution on this appeal. The loss of the vessel occurred outside France’s territorial waters. True, France asserts (as all coastal states do) the right to an Exclusive Economic Zone extending 200 miles from the shore, derived from the UN Convention on the Law of the Sea. But this, it is said, does not confer jurisdiction on France to prosecute anyone other than a French-owned ship. That the vessel was chartered by and for Total subsidiaries, was passing through the French EEZ, and damaged 400km of the French coast, is not enough. The logic of this opinion is that any prosecution ought to be initiated in Malta, if the Maltese owners (or their Liberian controllers or Italian owners)can be seen for dust.
It is interesting to compare this potential outcome with the sophisticated set of international conventions which govern the various rules concerning civil liability, and limitation of liability, for oil pollution, backed by funds forthcoming from the oil tanker industry. This compensation is applicable to any damage within the territorial waters or EEZs of any of its contracting states – in practice most of the world. Large sums of money in respect of damage caused by this spill have been paid out under these conventions, some 130m euros of which about 90% came from the fund itself, with the remainder from the P&I insurer involved, which has led to the settlement of some 7,000 claims. An international solution to an international problem.
To date there has not been much political will for an international environmental court capable of adjudicating such a claim. But I wonder whether, if the Cour de Cassation follows the advice of the Advocate-General, that might change. Standing back from the case, it does seem a bizarre result that France cannot prosecute a French-controlled company for devastating French beaches via an oil spill in the French EEZ.
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