• Friday, March 01, 2024
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MARPOL and the state-sanctioned destruction of crude oil-carrying vessels on Nigerian waters – Part II

MARPOL and the state-sanctioned destruction of crude oil-carrying vessels on Nigerian waters – Part II

In the prequel article, we analysed how the International Convention for the Prevention of Pollution from Ships (“MARPOL”) became part of Nigeria’s laws and examined the relevant provisions of MARPOL that prohibit the pollution of the seas by ships.

In this article, we have highlighted some reported incidents of the burning of vessels by Nigerian security agencies and examined how these incidents are not only a violation of the provisions of MARPOL but also constitute a violation of other maritime conventions like the United Nations Convention on the Laws of the Sea 1982 (UNCLOS) and some domestic laws. We have also made recommendations on alternative mechanisms that Nigeria can employ to tackle crude oil theft on Nigerian waters which are more economically beneficial and environmentally friendly than the method of burning vessels on the waters.

it is not the duty of the security agencies to determine what punishment to impose on vessels involved in oil theft

While Nigerian security operatives argue that the destruction of the intercepted vessels is necessary to serve as a deterrent to intending offenders, the impact of this act on the environment cannot be overlooked. Captain Warredi Enisuoh, the Director of Operations and Technical Unit at Tantitta Security, explained that, in addition to adhering to the rules of engagement guiding their actions, their approach is influenced by the extended duration of court proceedings, which can span up to a decade before a final verdict is reached, as well as the potential for ship leaks into the waters.

However, contrary to Captain Enisuoh’s assertion that these cases take a long time before judgment is delivered by the courts, the case concerning the hijack of the FV Hai Lu Feng II vessel was concluded in 2021 which is only a year after the suspects were arraigned in 2020. It should be emphasized that it is not the responsibility or duty of the security agencies to pass or determine what punishment or sanction to impose on vessels involved in oil theft because that is the sole prerogative of the court after the offender has been prosecuted and convicted in line with the provisions of relevant statutes.

It is noteworthy that the Armed Forces Act (“AFA”) makes it a criminal offence for a person subject to the Act to wilfully or maliciously set fire to a vessel as has been done in several cases by Nigerian security agencies, especially the Nigerian Navy. Section 111 of the AFA provides that a person subject to service law under this Act who wilfully or maliciously sets fire –

(a) to a public building, dwelling house, office, or any structure whatsoever, movable, or immovable, whether completed or not, occupied or not; or

(b) to any vessel, ship, aircraft, railway track or wagon, or vehicle or thing; or

(c) to a mine or working, fitting or an appliance of a mine, is guilty of arson and liable, on conviction by a court-martial, to imprisonment for life.

Thus, any member of the Nigerian Armed Forces who sets fire to a vessel intentionally or maliciously can be charged with arson and will be liable to life imprisonment on conviction by a court-martial.

Read also: Nigeria is the only country where vessels come, steal crude oil and fish, and go freely– Group

Apart from the AFA, there are other domestic laws in Nigeria enacted to combat maritime offences such as oil theft and reduce the pollution of the high seas in general and Nigerian territorial waters in particular such as the Suppression of Piracy and Other Maritime Offences Act 2019 (“SPOMO Act”) and the Oil in Navigable Waters Act, Cap. O6, LFN 2010.

The UNCLOS which Nigeria is also a party to provides that member states shall, individually or jointly as appropriate, take all measures consistent with this Convention that are necessary to prevent, reduce, and control pollution of the marine environment from any source.
From the above, it would appear that the cause of the destruction of crude oil-carrying vessels in Nigeria is not a dearth of legal framework but a lack of compliance with the existing laws.

Nigeria is a signatory to UNCLOS. UNCLOS mandates States “acting especially through competent international organizations or diplomatic conferences, endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development.” It further mandates States to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures.” With specific reference to pollution from vessels, Article 211 (1) and (2) provides that:

1. States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary.

Read also: Senate begins probe into crude oil theft in Niger Delta

2. States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.

Nigeria, being a signatory to the UNCLOS and also a member of the IMO which is a competent international organization that promoted MARPOL, has established rules, standards, and recommended practices for the prevention, reduction, and control of pollution of the marine environment through MARPOL. Nigeria is empowered to enforce the provisions of UNCLOS and MARPOL as a flag state, a port state, or a coastal state to prevent, reduce, and control the pollution of the marine environment. The country has an obligation under these conventions to adopt measures to eliminate or minimize the pollution of the marine environment by vessels.

Surprisingly, Nigeria has not lived up to its obligations under the relevant provisions of the UNLCOS and MARPOL to prevent the pollution of the marine environment by vessels, rather Nigeria is now the lawbreaker by allowing security agents to set fire to oil-laden vessels on Nigerian waters and the high seas and, thereby, polluting the marine environment by the oil discharged into the waters from the destroyed vessels.

It is noteworthy that since the ratification of MARPOL in 2002, Nigeria has taken steps by way of enactment of laws such as the MSA, the 2012 Regulations, and the NIMASA Act towards the implementation of the provisions of MARPOL. However, despite the enactment of these laws, the implementation of MARPOL in Nigeria has not been encouraging especially as there are no or scarce recorded cases of offenders who have been prosecuted, convicted, and sentenced by the Nigerian courts for the breach of the provisions of MARPOL, other relevant conventions, and statutes.

Read also: Illegal sale of vessel: Court remands PAZ Oil directors in Kwara

Recommendations
The foregoing shows that the Nigerian government has adopted the approach of burning vessels suspected or arrested for crude oil theft as a measure to prevent the escape or disappearance of those vessels from custody and to serve as a deterrent to prospective oil thieves. As shown earlier, this approach cannot solve the problem but it is instead wreaking havoc on the marine environment because of the discharge of oil and other hazardous substances into the waters from the destroyed vessels.

We recommend that instead of burning a vessel arrested for engaging in crude oil theft on the waters, the government can resort to the options provided in other existing laws to achieve the same result of prevention of the escape or disappearance of the vessels from custody, deter prospective oil thieves, and even enrich the coffers of the government in the process. The Economic and Financial Crimes Commission Act (“EFCC Act”) contains robust provisions for the prosecution of persons arrested for illegal oil bunkering and the forfeiture of all the assets and properties used for and obtained from the commission of the offence. The EFCC Act provides for the prosecution of the owner, captain, and crew of the arrested vessel by the Economic and Financial Crimes Commission (EFCC) for economic and financial crimes, which includes illegal oil bunkering, under the EFCC Act and empowers the EFCC to obtain an interim order of forfeiture against the vessel and the crude oil pending trial. The EFCC Act permits the forfeiture of a vessel that is used to facilitate the commission of an economic and financial crime in Nigeria. Where the offender is convicted, the final order of forfeiture can be made by the court and the property disposed of by sale or otherwise. Where the property is sold, the proceeds of the sale shall be paid into the Consolidated Revenue Account of the Federation. However, if the offender is discharged and acquitted, the court may revoke or confirm the interim order of forfeiture. If the offender is discharged on technical grounds only, the court may confirm the forfeiture order but if the forfeiture order is revoked, the crude oil and the vessel shall be released to their owners.

The above provisions of the EFCC Act ensure that the government can tackle crude oil theft in a manner that does not breach the right to a fair hearing of the offenders and does not lead to the pollution or degradation of the marine environment which may expose the country to both domestic and international liabilities.

Conclusion
In conclusion, the burning of crude-carrying vessels is not an effective solution to oil theft. Rather, it can expose Nigeria to both domestic and international liabilities to aggrieved persons, communities, and state bodies. Nigeria must honour its obligations under MARPOL and UNCLOS by adhering to the provisions of these conventions for the safety of the marine environment.

Nigeria must carefully harmonize its security imperatives with its obligations to prevent marine pollution and safeguard the marine ecosystem because the destruction of crude oil-carrying vessels could result in oil discharges into the marine environment, which would not only be an environmental disaster but also have long-lasting economic and social