Criminal Liability for Environmental Damage – National Courts Versus the International Tribunal for the Law of the Sea

Abstract

This article argues to abolish Criminal Liability for Environmental Damage in order to consider legislative amendments, which comply with the rulings of ITLOS. There is a discrepancy between plaintiffs who are able to present their cases to ITLOS and those who are unable to do so. In most fishery cases, plaintiffs are unable to resort to ITLOS and national courts deal with these cases based on their own understanding, not that of ITLOS. The article differentiates between Criminal Liability for Environmental Damage (RLED) and Civil Liability for Environmental Damage (CLED). It also provides examples and explanations for the difference between them. This article is divided into four main sections. The first tackles the theoretical difference between CLED and RLED. The second section presents six cases in which the ITLOS has dealt with the question of national RLED. The cases show how ITLOS transforms RLED to CLED. The third section highlights discrepancies in the practice of both international and national courts with regard to two issues: confiscation and bond determination in fishery cases. The fourth and last part recommends a solution to overcome discrepancies between national and international courts.