Nauki Humanistyczne i Społeczne

Prawo Morskie

Zawartość

Prawo Morskie | 2010 | No XXVI |

Abstrakt

This article takes on seldom discussed subject of maritime criminal law. It draws inspiration from growing number o f offenses being committed at sea, including acts o f piracy. The first part of the report explores basics o f Polish criminal law with particular attention paid to its maritime aspects. The author criticizes the method o f implementation into Polish law o f maritime offenses as required by the United Nations Convention on the Law o f the Sea (UNCLOS 1982). The study notes in this context the significance of Convention for the Suppression o f Unlawful Acts Against the Safety o f Maritime Navigation (SUA 1988) and in particular its implementation into Polish Criminal Code. The author advocates ratification of the 2005 Protocol to the SUA Convention by Poland and speedy inclusion o f terrorism offenses defined therein into Polish law. Much attention is being paid to the offense o f piracy. The author distinguishes between an act o f terrorism at sea and an act o f piracy and recommends adoption o f definition of piracy by domestic legal systems as set forth in UNCLOS Article 101. Domestic regulations are modeled after legal framework adopted by Comite Maritime International (CMI). The study includes draft legislation. Next the author discusses criminal law o f the European Union, including the Directive 2005/35/EC o f the European Parliament and of the Council on ship-source pollution and on the introduction o f penalties for infringements (as amended by the Directive 2009/123/EC). The Directive introduces a new level o f sea pollution enforcement by way o f inter alia, criminalizing certain acts. The author suggests introducing those offenses into Polish law. Finally, the study examines financial penalties commonly applied in maritime law. The author voices skepticism as to theoretical and legal grounds for administration of those sanctions by maritime authorities.

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Abstrakt

The year 2009 brought significant change in public maritime law. The author discusses amendments made to Act on Marine Zones o f the Republic of Poland and Marine Administration (1991) and to Fisheries Act (2004) and a new judgment by Constitutional Tribunal The overview includes remarks de lege ferenda.

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Abstrakt

The author applies terminology and methods employed in legal theory (i.e. superflua, practical inconsistencies, legal gaps) to laws on protection o f marine environment. The central question is whether there is overabundance o f rules on the subject, including rules o f law, and whether such overabundance is detrimental. The problem is explicated by the case o f Dębki (Krokowa County), a remarkably beautiful marine ecosystem west of Władysławowo, where an initiative to construct 33 wind turbines towering 150 meters within 5 kilometers from the coastline evoked civil protests. The debate was sparked by a controversial decision o f 9 September 2009 by Regional Director for Environmental Protection. The author explores general issues of civic participation and property dispute in the context o f environmental protection.

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The author challenges the views opposing ratification by Poland of United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The Rotterdam Rules 2008). The ratification neither collides with the Vienna Convention on the Law o f the Treaties (VCLT1969) not it would put Poland at risk o f a dispute with states parties to Convention on the Contract for the International Carriage o f Goods by Road (CMR 1956). The Rotterdam Rules were drafted as part of the UN international legal system and have been scrutinized by the UN legal advisors. The Rotterdam Ruled do not affect the scope of application of CMR or any other convention on carriage of goods. Poland is yet to decide whether to ratify the Rotterdam Rules.

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The article examines a notable tendency toward initiating criminal proceedings and imposing severe penalties for oil spills on ship captains. The tendency takes its origins from the aftermath of 1989 disaster, where a tanker Exxon Valdez run aground and subsequently spilled some 100 000 tons of oil into the Prince William Sound, Alaska. The Exxon Valdez case involved not only civil liability for pollution damage, but also criminal charges. The ship’s captain has been sentenced in 1991. This tendency has been accepted in Europe and now it begins manifest itself on other continents as well. The author puts up arguments in defense of polluting ships' captains and crew.

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The article discusses requirement for proof of insurance or other financial security, a subject that is known to international conventions, yet remains relatively novel in maritime law. Proof of insurance takes form in a certificate issued after a template set forth in a relevant convention. The International Maritime Organization works on a single model compulsory insurance certificate that would cover numerous conventions. The author, despite difficulties associated with the project, advocates single model certificates.

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Abstrakt

In the year 2004, no more than two years after the 2001 Maritime Code had entered into force, amendments have been made to the law on general average. The article criticizes the amendments as to their correctness and purpose. The author questions inter alia references to the dispatchers’ ethical rules of conduct as the profession itself is in decline.

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Abstrakt

The article deals with tacit acceptance amendment procedure, a legal concept common to the greater number of maritime conventions. In order to speed up adjustment of maritime law to the requirements of present day commerce, especially with respect to technical issues, the International Maritime Organization has introduced a method of amending its conventions by way of a proposal drawn up and adopted by qualified majority voting at I MO institutions. The proposal is then forwarded to the states parties; if a state does not expressly reject the proposal within a fixed period, the amendment is considered to have been accepted by that state and becomes binding as an integral part of the convention. During a working session at Committee for Codification of Maritime Law there was a dispute with Government Legislation Centre regarding methods of introduction of tacit acceptance amendments into Polish law. The author recommends effecting a simplified scheme for introduction of such amendments into Polish legal system and proposes changes to the Maritime Code regarding relations between domestic and international rules of law.

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Member states of the European Union face a growing number of irregular migrants attempting to cross the Unions maritime border in the Mediterranean. An illegal transfer route there allows tens of thousands to enter the EU, mostly from Africa and Asia. The southern EU states of Italy, Malta, Greece and Spain cope with the problem with increasing difficulty. Their border enforcement authorities are to be aided by EUs specialized Rapid Border Intervention Teams (RABITs). The task of coordinating the measures lies ahead of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), based in Warsaw. Frontex began its operations in October 2005. The European Parliament took position on the issue irregular migration in the Mediterranean and called upon the Commission and the Council to strengthen the efforts against human trafficking and smuggling. The problem has also been addressed by European Economic and Social Committee and Committee of the Regions.

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The study overviews selected issues regarding interconnection between law of the sea, maritime law and space law. The analysis concerns general principles on application of space technologies to remote sensing of the sea as set forth in the Convention on the Transfer and Use o f Data of Remote Sensing of the Earth from Outer Space (1978) and the Annex to the United Nations Resolution 41/65 on Principles Relating to Remote Sensing of the Earth (1986). The article also surveys Convention on the International Maritime Satellite Organization (INMARSAT 1976) together with Operating Agreement and covers some aspects o f International Maritime Organization’s use of space technology in application of International Convention for the Safety of Life at Sea (SOLAS 1960, 1974, 1980), International Regulations for Preventing Collisions at Sea (COLREGS 1972) and International Ship and Port Facility Security Code (ISPS 2002). The author describes how sea monitoring and exploration through satellite technology affects maritime legislation and discusses its impact on application of conventions for maritime environment protection, resource management, transportation and safety.

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Carbon dioxide capture and storage beneath the seabed is a relatively new concept and its regulation is still in development. Neither international law nor European Union law cover the issue thoroughly. The author discusses challenges of tackling climate change and looks into carbon dioxide subsea storage from the perspective of maritime environment protection. There are no international conventions on carbon dioxide capture and storage beneath the seabed. The analysis of legal systems leads to conclusion that Polish domestic regulation of the issue is ahead of international law. It must be noted however that carbon dioxide may only be stored in accordance with the new law when there is no threat to the maritime environment.

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A recent and vigorous debate on the volume of mineral resources remaining in Poland prompts analysis on legal aspects of their exploitation in the context of protection of the country’s natural heritage. Economic growth requires consumption offossil fuels. Short-term economic solutions however invoke difficulties ahead. The article examines whether Polish legal framework meets the challenge.

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There is a global trend towards electing adjudication as a method of dispute resolution due to its efficiency and a measure of uniformity. The most complex cases, however, require a specialized international court, or, at least, cooperation between international judiciary bodies. The MOX Plant Case (Ireland v United Kingdom, an arbitration case pursuant to Article 287, and Article 1 of Annex VII, of the United Nations Convention on the Law o f the Sea, and Case C-459/03 Commission v Ireland) is an example of cooperation between International Tribunal for the Law of the Sea and the Court o f Justice of the European Union. The author discusses procedural issues, with particular attention paid to the conflict of jurisdiction.

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There is a seldom acknowledged problem of practical limitations to the principle of freedom of navigation. The United States as well as the United Kingdom, France, Japan and Turkey, to name a few, oppose excessive use of navigation freedom as defined by the United Nations Convention on the Law of the Sea (UNCLOS 1982). The author discusses divisions of seas from navigational and operational perspective (the high seas, exclusive economic zone, the case of Russian navigation in Gulf of Finland), and comments on freedom of navigation during armed conflict.

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The article outlines the issues and challenges faced by Polish sea harbours in the light of European documents on harbour policy and Polish authorities’ plan of action. The author discusses the effects of recent economic slowdown and attitudes of various players, including the harbour users. Despite pessimism associated with valid criticism regarding the harbours’ lost opportunities and failures, the article draws an optimistic prognosis of their development in the light of recent legislative awareness and effects of cooperation.

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Redakcja

Redaktor naczelny:
Dorota Pyć

Zastępcy redaktora naczelnego:
Magdalena Adamowicz
Justyna Nawrot

Adres redakcji:
ul. Jana Bażyńskiego 6
80-952 Gdańsk

Kontakt


Adres Redakcji
80-286 Gdańsk Wrzeszcz
ul. Jaśkowa Dolina 31
tel. (58) 712-97-00

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