On 14 May 2025 the Committee of Ministers of the Council of Europe (CoE) adopted the Council of Europe Convention on the Protection of the Environment through Criminal Law. The date of opening for signature will be decided later (anticipated to be in 2025) and the Convention will enter into force following 10 Signatories expressing their consent to be bound, including at least eight Member States of the Council of Europe (Art 53).
The Convention builds upon numerous international treaties with extraterritorial application to the oceans, including –but not limited– to MARPOL, SOLAS, UNCLOS and the Hong Kong Convention. Indeed, the Convention provides:
Recognising that environmental crime has a negative impact on economies, public health, human safety, food security, livelihoods and habitats;
Council of Europe Convention on the Protection of the Environment through Criminal Law, Premable
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Recognising that environmental crime increasingly has extraterritorial effects and takes the form of international trafficking, which, along with the acceleration of degradation phenomena (climate change, erosion of biodiversity, depletion of natural resources, destruction of habitats, etc.), prompts the need for general minimum standards in criminal law as part of a common and collaborative international framework;
The Convention seeks to effectively prevent and combat environmental crime, promote and enhance national and international co-operation against environmental crime and establish minimum rules to guide States in their national legislation (Art 1(1)). Reflecting the period in which the Committee of Experts was drafting the Convention, the Convention explicitly remains applicable in times of peace and in situations of armed conflict, wartime or occupation (Art 2(2)). The application of human rights at sea are evident in its provisions, including non-discrimination (Arts 4, 49, 51(1); see further ECHR, Art 14).
26 Articles address substantive crimes for which Parties shall take the necessary legislative or other measures for their prevention (Art 10). Parties shall also take effective, proportionate and dissuasive sanctions against offenders (Art 35). Substantive crimes shall include inciting or aiding said offences, as well as attempting to commit certain offences (Art 32). Offences with application in an ocean context include: unlawful pollution (Art 12); import or export of regulated chemical substances (Art 14); transport, import, export or disposal of radioactive material or substances (Art 15); import or export of mercury, mercury compounds and mixtures of mercury and mercury-added product (Art 16); import, export, use or release of ozone-depleting substances, or the import or export of products and equipment containing or relying on such substances (Art 17); import, export, use or release of fluorinated greenhouse gases, or the import of products and equipment containing or relying on such gases (Art 18); transport, shipment or disposal of waste (Art 19); operation or closure of an installation in which a dangerous activity is carried out (Art 20; including floating installations – Explanatory Report (paras 123-124); recycling of ships (Art 22); ship-source discharges (Art 23); mining (Art 26); killing, destruction, taking, possession and transboundary trade of protected wild fauna or flora (Arts 27 and 28(2)); deterioration of habitats within a protected site (Art 29) transporting, releasing or spreading invasive alien species (Art 30); and a ‘particularly serious offence’ (Art 31; Explanatory Report (para 172 including ‘ecocide’).
Parties must establish jurisdiction over the defined offences in an ocean context in a number of explicit cases:
- The coastal State for offences committed in its territory, including the internal waters and territorial sea and, for archipelagic States, the archipelagic waters (Art 33(1)(a)) (‘historic waters’ claims are on a case-by-case basis, but would usually fall within the ‘territory’ and thus obligations of the coastal State under this Convention);
- The flag State for offences committed on board a ship flying their flag (Art 33(1)(b));
- The State of registry for offences on board an aircraft registered under its laws (Art 33(1)(c));
- The State of nationality for offences committed by one of its nationals (regardless of the flag State or maritime zone in which the offence occured (Art 33(1)(d));
- Application of the ‘extradite or prosecute‘ principle (Art 33(3)).
Parties may consider to establish jurisdiction over offences committed against one of their nationals (passive personality principle; Art 33(2)). For more information see here.
De Maribus 