International Law and Immigration

Ca. Int'l Law Journal SPRING 2014, VOL. 22, NO. 1

Going Overboard: The Criminalization of Seafarers in Violation of Their Human Rights, Regional and Domestic Law’s Conflict with UNCLOS and MARPOL, and the Need for Reform

By Megan K. Reid*

I. INTRODUCTION

Following an oil spill, swift and aggressive measures are often taken to ensure that the public demand for justice is fulfilled. Unfortunately, seafarers1 are often placed in the post-incident spotlight, regardless of whether the incident involved operational error. During the 2002 Prestige accident, an oil spill formed off the coast of Spain in the middle of a raging storm. Spanish authorities denied the ship access to a calm harbor, which would have allowed the captain and crew to mitigate the environmental harm.2 During this fierce storm, it was impossible for the Prestige crew to attempt repairs or transshipment of the oil to lessen the environmental harms.3 Yet, Spain ordered the ship out to sea4 while it was severely damaged, which led to the eventual sinking and subsequent oil spill.5 The captain of this ship was criminally charged and waited ten years for his trial to commence.6 Eleven years after his detention, on the anniversary of the date the captain sent the original S.O.S. call for assistance, a Spanish court acquitted him on the pollution charges.7

In the most extreme cases of criminalization, authorities have detained seafarers without charges, confiscated their passports, and barred them from obtaining legal assistance, all in violation of their basic human rights.8 This practice seeks to merely assign blame and find a scapegoat, as opposed to reducing pollution through swift cooperation.9 For example, ship owners may be reluctant to send a technical team to quickly address the problem if there is a threat of imprisonment, and salvage companies may likewise be reluctant to assist.10 The International Salvage Union has even announced that it will not provide salvage services for ships in peril if they are located within a jurisdiction11 that has previously detained salvage personnel without reasonable cause.12

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