Legal Framework for Ship Recycling
Criminal Liability for Violating the Regulation: Norwegian Perspective.
Circumvention of the Legislation
Candidate Number: 518
Deadline for Submission: May 18, 2021 Number of words: 17993 / 18 000
i Table of contents
1 INTRODUCTION ...1
1.1 Ship Recycling: What Is the Problem? ...1
1.2 Thesis’s Topic and Research Questions ...2
1.3 Relevance and Need for Research on a National Level ...3
1.4 Scope and Methodology ...4
2 LEGAL FRAMEWORK FOR SHIP RECYCLING ...5
2.1 Overview ...5
2.2 The Waste Movement Regime ...5
2.2.1 Background to the Basel Convention ...5
2.2.2 Obligations under the Basel Convention ...6
2.2.3 Background to EU Waste Shipment Regulation 1013/2006 ... 14
2.2.4 Obligations under EU Waste Shipment Regulation 1013/2006 ... 15
2.3 The Hong Kong Convention ... 20
2.3.1 Background to the Hong Kong Convention ... 20
2.3.2 Obligations under the Hong Kong Convention ... 20
2.4 EU Ship Recycling Regulation 1257/2013 ... 21
2.4.1 Background to EU Ship Recycling Regulation 1257/2013 ... 21
2.4.2 Obligations under EU Ship Recycling Regulation 1257/2013... 22
2.5 Summing Up ... 23
3 SHIPOWNER’S CRIMINAL LIABILITY FOR BREACHING THE LEGAL FRAMEWORK ... 24
3.1 Introduction ... 24
3.2 The Principle of Legality ... 25
3.3 Liability for Attempt ... 27
3.4 Accessory Liability ... 28
3.5 Enterprise Liability ... 30
3.6 Breach of Basel Convention and the EU Waste Shipment Regulation 1013/2006 ... 31
3.6.1 Legal Grounds for Criminal Liability ... 31
3.6.2 Are Legal Grounds for Criminal Liability Clear and Accessible? ... 33
3.6.3 Norwegian Case Law – Tide Carrier ... 34
3.7 Breach of EU Ship Recycling Regulation 1257/2013 ... 37
3.7.1 Legal Grounds for Criminal Liability ... 37
3.8 Research Results... 42
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4 CIRCUMVENTION OF THE LEGISLATION ... 44
4.1 The Cash Buyers Problem ... 44
4.2 Due Diligence for Shipowners Selling Vessels ... 45
5 SUMMARY ... 48
REFERENCES ... 49
1 1 Introduction
1.1 Ship Recycling: What Is the Problem?
In 2015, the United Nations General Assembly adopted Resolution 70/1, which sets out 17 Sustainable Development Goals designed to be a “blueprint to achieve a better and more sustainable future for all”.1 Intended to be brought about by the year 2030, the Global Goals aim to end poverty and hunger, protect human rights and human dignity, as well as to protect the planet from degradation. The goals are a universal agenda that all countries can and must strive to achieve.
In light of this, many of the environmental challenges the planet is facing today stem from unsafe and unsound ship recycling, since a vessel may be a source of pollution even after the end of its commercial life.2 Ship recycling, also referred to as ship breaking, ship demolition, ship dismantling, and ship scrapping, is a process of taking apart end-of-life vessels after their operational purposes are over in order to reuse steel in future productions.
Most ships have a life expectancy of a couple of decades. At some point a ship is no longer required by its owner, either because of its age or because market conditions make it less profitable to operate it. Every year, between 800 and 1100 ships are scrapped.3 In the year 2020, this number increased drastically due to the phasing out of single-hull ships4 and, most importantly, the outbreak of the Covid-19 pandemic which has taken its toll on the shipping industry.5
Nowadays, more than 95 % of world ship breaking activity is taking place in India, Bangladesh, Pakistan, and China6 through beaching.7 This implies that ships are driven onto shallow beaches at high tide and scrapped under unsustainable conditions posing serious risks to human health and the environment.8 The ecosystem in these regions has been severely scarred and marine biodiversity has been systematically ruined by various hazardous materials (asbestos, lead, mercury, arsenic, polychlorinated biphenyls, oil sludge, etc.) contained in
1 The United Nations (unknown date).
2 Karim (2015) p. 85.
3 Go Shipping (2021).
4 Sjøfartsdirektoratet (2021).
5 BBC News Русская Служба (2020), South China Morning Post (2020).
6 Sjøfartsdirektoratet (2021), Psaraftis (2019) p. 227, Sjøfartsdirektoratet (2015), Ormond (2012) p. 54.
7 Ryngaert (2018) p. 226.
8 Engels (2013) p. 18.
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ships.9 Workers at these shipyards are exposed to significant risks from fires, explosions, unsecured objects, inadequate sanitation, and a general lack of adequate accident preventative measures and equipment.10 In many shipbreaking yards, the working conditions are so bad that life expectancies in these areas are as low as 40 years.11 Child labor at these recycling facilities is also a common phenomenon.12 Because of this, the International Labour Organization has called shipbreaking one of “the most dangerous occupations” in the world.13 The intractable issues that have plagued the ship recycling industry, coupled with the growing international dissatisfaction with the way the industry has been operated, have led to the question of the need for an international law solution. This concern has resulted in political momentum and the adoption of several regulative tools which aim at making ship recycling green and environmentally friendly, ensuring zero impact of the toxic metals on human health and marine life. This thesis will provide an analysis of the legislative mechanisms which today regulate ship recycling, as well as examine whether the breach of the outlined regulation is punishable with criminal liability in Norway.
1.2 Thesis’s Topic and Research Questions
The topic of this thesis is to examine the regulatory situation regarding shipbreaking.
The main research question is whether a shipowner can receive criminal liability in Norway for selling a ship for scrap in violation of the Basel Convention and the EU Waste Shipment Regulation no 1013/2006 (“EWSR”), as well as the EU Ship Recycling Regulation no 1257/2013 (“ESSR”). In order to provide an answer to this question, I will study whether the Norwegian legislation provides clear and accessible grounds for punishment for the breach of EWSR and ESRR, according to the principle of legality in § 96 of the Constitution of the Kingdom of Norway.
The study will also provide a short analysis of how the legislation is circumvented with the help of cash buyers, as well as give possible due diligence procedure for shipowners selling a vessel without any intent to scrap it. I will present an analysis of what a diligent shipowner
9 Psaraftis (2019) p. 20, Puthucherril (2010) p. 2, Fjeldheim (2005) p. 212, Moen (2008) p. 1053, Ryngaert (2018) p. 226.
10 Galley (2014) p. 1.
11 Sjøfartsdirektoratet (2021), Puthucherril (2010) p. 36.
12 Psaraftis (2019) p. 20, Ryngaert (2018) p. 227.
13 International Labour Organisation (unknown date).
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can do to show that the sale agreement he is entering into with a buyer is bona fides and not a disguised shipbreaking transaction.
1.3 Relevance and Need for Research on a National Level
Norway is one of the world’s largest shipping nations with the fifth biggest fleet measured by fleet value after Japan, Greece, China, and the USA.14 Being one of the world's leading shipping nations, Norway has been a key driver of high international standards in the global shipping industry. As an example, Norway was a driving force in the development of the Hong Kong Convention and the first country to accede it in 2013.15
Like many other states, Norway has given its promise to follow up the 2030 Agenda, both nationally and internationally, to line up for global sustainable development.16
At the same time, it is known that it is European countries, including Norway, which top the lists of countries scrapping ships in South Asia under unacceptable conditions.17 In doing so, these countries contribute to the environmental pollution and pose significant danger to human lives.
It is also known that due to the outbreak of the Covid-19 pandemic in 2020, the number of ships which have been laid up in Norway has increased dramatically,18 so it can be expected that many vessels will be sent for scrap in years to come. As some of these ships might be dumped on South Asian beaches, there is an urgent need to prevent such course of events.
Norway, as a maritime superpower, must take responsibility for ships throughout their life cycle and make sure that obsolete vessels are scrapped in a safe and green manner. This can only be achieved if the national legislation forbids illegal shipbreaking and at the same time provides strict penalties for breach of the outlined regulation.
It should also be noted that research in this regard will also have relevance outside of Norway and can potentially influence legislation and court procedures in other countries as well.
14 Norges Rederiforbund (2018).
15 Prop. 73 S (2012–2013) p. 2.
16 Regjeringen (2016).
17 NGO Shipbreaking platform (unknown date) (c).
18 NRK (2021).
4 1.4 Scope and Methodology
The goal of Part 2 is to map out the legal framework applicable to recycling of ships. I will in this regard primarily analyze international regulations and use general legal method applicable in this sphere. The Vienna Convention on the Law of Treaties is of interest in this regard, as it provides guidance on the interpretation of international treaties and conventions and is considered to be customary law.19 As it follows from Article 31 of the Convention, treaties should be interpreted in good faith based on their wording and in light of the treaty’s object and purpose ̶ a methodology which will be used in Part 2.
Part 3 will provide analysis of how the international regulations on shipbreaking are transformed or incorporated in Norway and whether the Norwegian legislation provides grounds for punishment for the breach of EWSR and ESRR for illegal scrap of vessels. In this regard, only criminal liability for shipowners will be studied: punishment for other subjects like shipyards, insurance companies, banks, brokers, etc. will not be covered in this work. The focus in Part 3 will be on internal sources, so traditional legal method will be used here. It stands to mention that there is a lack of legal practice and general coverage in literature when it comes to the question of how a shipowner can be criminally punished for illegal scrap in violation of the rules found in EWSR and ESRR.
Norway saw its first and only case (Tide Carrier)20 on criminal liability for illegal scrap in violation of EWSR in November 2020. This case is from the first instance and can yet be overruled by other instances in the future. But since Tide Carrier is the only case in Norway which addresses the topic of criminal liability for illegal scrap of ships, it has a relatively high argumentative value as a legal source.
When it comes to the question of how criminal liability for the breach of ESRR is regulated in Norway, there are no sources either in case law, legal literature, or preparatory works which can give answers to this question. Definite answers to this problem can therefore not be given in this work. However, it will give an opinion on what the legislative status seems to be like to this day.
Finally, Part 4 will give an analysis of how cash buyers play an important role in the circumvention of the legislation regulating shipbreaking. Part 4 will also provide a possible due diligence procedure for shipowners who sell their vessel without intent to scrap it.
19 Ruud (2018) p. 86.
20 Case nr.19-183171MED-SUHO.
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2 Legal Framework for Ship Recycling
2.1 Overview
The goal of Part 2 is to establish which rules regulate ship dismantling in Norway today.
There is a set of various regulations applying to activities regarding shipbreaking. These include international conventions, EU regulations and national laws.21
The first category includes the Basel Convention and the Hong Kong Convention.
Among EU law provisions which strengthen the two mentioned international obligations there are EU Waste Shipment Regulation no 1013/2006 and EU Ship Recycling Regulation no 1257/2013. EU Waste Shipment Regulation no 1013/2006 together with the Basel Convention establish a so-called “Waste Movement Regime”.
On a Norwegian national level, ship recycling is regulated by two regulations. The first one is Regulation on Recycling and Treatment of Waste22 which is an incorporation of EU Waste Shipment Regulation no 1013/2006. The second regulation is Regulation on Recycling of Ships and Mobile Offshore Units23, which incorporates EU Ship Recycling Regulation no 1257/2013. The Pollution Control Act of 1981 and the Norwegian Ships Security Act are also relevant legal sources regulating shipbreaking in Norway.
On top of the mentioned legislative instruments there have been outlined two sets of guidelines: IMO Guidelines on Ship Recycling (2003) and ILO Guidelines on Safety and Health in Ship Breaking in Asia and Turkey (2003).24 Since the two guidelines are of a non- binding character, they will not be covered in this thesis.
2.2 The Waste Movement Regime
2.2.1 Background to the Basel Convention
The Basel Convention entered into force in May 1992. Its main goal is to reduce and control the transboundary movement of hazardous waste in order to protect human health and the
21 Fjeldheim (2005) p. 214.
22 Forskrift om gjenvinning og behandling av avfall.
23 Forskrift om gjenvinning av skip og flyttbare innretninger.
24 Fjeldheim (2005) p. 214.
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environment, which follows from its preamble. Such control is implemented through the establishment of rules aimed at reaching consent between countries exporting hazardous wastes with importing countries and with the involvement of the authorities of any transit State.25 It follows further from the preamble that one of the main goals of the Convention is to protect developing countries from the transboundary movement of hazardous waste.
188 states26 are parties to the Convention per May 2021. According to general principles of international law, a convention is binding only for its member-states27 which in the case with the Basel Convention include, inter alia, Norway, India, Bangladesh and Pakistan.
2.2.2 Obligations under the Basel Convention
As mentioned, the Convention regulates transboundary movement of hazardous waste between exporting and importing states.
The provisions in this regulation do not mention directly that it can be applicable for ship recycling. Whether end-of-life ships fall under the scope of the Basel Convention has therefore been a much-debated question. The shipping industry has claimed that the waste regulation was not tailored to apply to ship breaking.28 One of the arguments has been that this issue was not discussed by the parties who drafted the regulation.29 Another argument has been that a ship cannot be considered as “hazardous waste”. Some academics claim that the Convention is “unsuitable for defining minimum standards for the recycling of ships” and enforcing it as the regulatory regime for the shipbreaking “was an avoidable mistake, encouraged by the persistent lobbying of environmental activists”.30
However, this point of view can be questioned as it follows from the Vienna Convention on the Law of Treaties Article 31 (1) that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. This means that treaties should be interpreted primarily based on their wording in light of the treaty’s purpose. It is also an acknowledged principle that treaties should be interpreted dynamically,31 viz. taking into consideration
25 Psaraftis (2019) p. 224.
26 Secretariat of the Basel Convention (unknown date).
27 Fleischer (2007) p. 42.
28 Moen (2008) p. 1057.
29 Engels (2013) p. 126.
30 Psaraftis (2019) p. 225.
31 Bjørge (2012) p. 104.
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developments in social and political attitudes. Consequently, words in a text can acquire a new meaning over time, as the surrounding world is under a constant change. The dynamic interpretation is acceptable so long it is within the intentions of the parties who concluded the treaty.32
As a result, in order to find out whether demolishing of end-of-life ships can be covered by the Basel Convention, one should interpret its scope, conditions and the overall goal.
This interpretation will depend upon several elements: an end-of-life ship must be classified as “hazardous waste” (2.2.2.1), which is “disposed of or [is] intended to be disposed of”
(2.2.2.2) and is subject to “transboundary movement” (2.2.2.4).33 On top of it, both the state of export and the state of import must be parties to the Convention (2.2.2.3).
2.2.2.1 “Waste” and “Hazardous Waste”
So, can a ship be “waste” in the Convention’s terms?
As it follows from Article 2 (1) of the Convention, waste is “substances or objects” which are
“disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law”. Vessels are inarguably “objects”.
Nonetheless, the Basel Convention does not apply to all transboundary movement of wastes, but only to transboundary movements of “hazardous” and “other wastes”.34
The Convention defines “hazardous wastes” in Article 1 (1). This is, according to paragraph (a), “[w]astes that belong to any category contained in Annex I and II, unless they do not possess any of the characteristics contained in Annex III”. If wastes are not covered by paragraph (a), but are “defined as, or are considered to be, hazardous wastes by the domestic legislation of the Party of export, import or transit”, then they are considered “waste”, cf.
paragraph (b). So according to the Convention, wastes are hazardous if they fall within the Convention’s definition in Article 1 (1) (a) or if they are deemed so under the national legislation of a party to the Convention.
Whether end-of-life ships can be identified as “hazardous wastes” has been a controversial issue. In this regard, Decision VII/26 taken at the Seventh Conference of the Parties of the
32 Bjorge (2015) p. 190.
33 Engels (2013) pp. 124-125.
34 Moncayo (2016) p. 302, Kummer (1992) p. 543.
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Basel Convention (COP-7)35 recognized that “many ships and other floating structures are known to contain hazardous materials and that such hazardous materials may become hazardous wastes as listed in the annexes to the Basel Convention”. COP Decisions are binding on all the State-parties36 and can be used for interpreting of the “waste” condition.37 This means that end-of-life ships containing hazardous materials in their structure and meant for export are considered as “hazardous wastes” under the Convention.
In 2002 we saw the first court ruling38 stating explicitly that an end-of-life ship was hazardous waste. The Dutch authorities detained Sandrien, a chemical tanker, when they found out that it had taken a decision to scrap it in India.39 The ship was arrested on the basis that the export of the ship was in violation of the EU Waste Shipment Regulation which is based on the Basel Convention.40
2.2.2.2 “Disposed of Or Are Intended To Be Disposed of”
Having established that end-of-life ships can be rendered as “hazardous waste”, the next question is whether ships on their last voyage to recycling facilities fit the wording “disposed of or are intended to be disposed of”.
The ordinary meaning of the word “dispose of” is to get rid of something as useless or unwanted.41 Sending a ship for scrap fits this wording successfully.42
In legal theory disposal is defined as “[o]perations which may lead to resource recovery, recycling reclamation, direct re-use or alternative uses”.43 This supports the idea that recycling of a vessel falls under the wording “object which is disposed of”.44
35 Rapport COP-7 (2004).
36 According to the Vienna Convention Article 39 which provides for amendment of treaties by parties whereas Article 41 (1) (b) allows inter partes modification of multilateral treaties.
37 According to the Vienna Convention Article 31 (3) (a) which states that any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions shall be taken into account.
38 Case nr. 200105168/2 (Sandrien).
39 Engels (2013) p. 173.
40 Moen (2008) p. 1057.
41 Merriam Webster Dictionary (a) (unknown date).
42 Kummer (1992) p. 543.
43 Engels (2013) p. 125.
44 Ibid.
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The wording says further that an intention to dispose of an object is sufficient for the criterion to be met. The ship becomes waste at the moment a decision to scrap it has been made.45 The Convention does not specify who the subject of the question is, but it must be assumed that it is the owner46 who might or might not “dispose of or intend to dispose of” a vessel. Since intention is a subjective quality, the ship becomes a waste when the decision to scrap it has been taken,47 even though the ship is still used for transporting cargo on her last voyage.
While a disposal of a ship can be traced and revealed relatively easily, a person’s intent is a phenomenon which is difficult to establish and detect for someone else than the owner who can easily disguise it. This is because intent, being a form of volition, is a state of mind which is per se a subjective thing. Since it is impossible to track subjective thoughts in someone’s mind, establishing it is not an easy task. If no consent or admission of intent has been given, one can deduce whether the person had intent only with the help of objective factors. It is therefore possible to establish such a subjective phenomenon as intent by analyzing objective factors in a complex assessment.
Factors48 indicating that a disposal of a ship might take place can be:
a. an agreed contract of sale to a scrapyard (a gold standard for evidence of intention to discard a ship);49
b. taking vessel permanently out of traffic in waiting for final arrangements for scrapping;
c. not maintaining the vessel for transport of cargo or passengers;
d. the age of the ship. The older the ship, the higher probability for imminent scrap;
e. the deletion of the ship from the maritime register;
f. lacking renewal of necessary certificates or classifications of the vessel;
g. the route to be taken, especially countries with poor ship scrapping conditions;
h. previous behaviour of the shipowner regarding ships in their final life cycle;
i. poor or defective condition of the ship and its equipment;
j. negotiations with potential cash-buyers.
So, an insightful person, be it a PSCO50 or another representative of authorities, can by examining the ship’s documentation including the aforementioned moments prior to departure
45 Fjeldheim (2005) p. 214.
46 Ulfstein (1999) p. 7.
47 Ibid.
48 Ibid p. 8, Engels (2013) p. 129.
49 Moen (2008) p. 1058.
50 A Port State Control Officer.
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find out whether a vessel of a certain age and condition might be getting ready for her last voyage.51
Some scholars claim, however, that inferring the intention to dispose of a ship from the mentioned moments is problematic since it interferes with shipowners’ rights and is hardly feasible in practice.52
Nevertheless, Norway has recently seen a case where a ship owning company and the owner of this company received punishment for contribution to an attempt (medvirkning til forsøk) to scrap a ship in Pakistan without consent from the Norwegian Environment Agency (Miljødirektoratet).
In February 2017, a ship under its new name, Tide Carrier, attempted to leave Norway, after having been laid up for many years. The ship’s initial name, Eide Carrier, was not the only thing that had been changed by the departure moment: the vessel also got a new flag and a new registered owner, Julia Shipping Inc. Mere hours after the vessel’s departure, it suffered an engine stoppage. The Norwegian authorities had to provide a rescue operation, which triggered a suspicion that the ship was heading to a scrapyard. An investigation started against the vessel’s shipowners (Eide Marine Eiendom AS and the owner of the company). As a result, the owner was sentenced in November 2020 to six months unconditional imprisonment for having assisted scrap dealer in its attempt to illegally export the ship. Eide Marine Eidendom AS received a confiscation of criminal dividends amounting to NOK 2,000,000.
Although this decision is from the court of the first instance, it is still of great interest as it sheds light on a possibility to punish the owner of a vessel for a contribution to an attempt to scrap it.
Part 3.6.3 will provide a detailed analysis of the legal grounds for punishment used in this case. In the present Part it will be analyzed how intent was established in this particular case.
The public prosecutor’s office (påtalemyndigheten) and the court used the following moments to establish intent to scrap the vessel.
Firstly, Tide Carrier was an unused ship of an old type which was laid up in dry dock and hence not used in traffic for 10 years, cf. p. 27 of the decision. This entailed yearly costs
51 Moen (2008) pp. 1058-1059.
52 Engels (2013) p. 130.
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amounting to at least NOK 6,000,000, cf. p. 6. The accused tried to start a number of commercial projects for the ship over several years, all to no avail. These facts indicated that the owner had problems with involving the vessel in commercial deals and, therefore, had an urgent necessity to get rid of it.
Secondly, numerous e-mails with different involved subjects (brokers, bank representatives, etc.) were evidence that the ship owning company intended to scrap the vessel.
Thirdly, the authorities managed to prove that Eide Marine Eiendom AS concluded a selling agreement with Julia Shipping Inc which was established as a single purpose company, cf. p.
9. This company was owned by Wirana which was “one of the largest vessel cash buyers”
positioned in Singapore, cf. p. 8. Thus, in reality, the contract was regulating a sale of ship for scrap between Eide Marine Eiendom AS and cash buyers Wirana.
Finally, several witnesses gave testimonies indicating that the company had in fact an intent to scrap the vessel.
Similar moments (contract on scrapping, testimonies of several witnesses, e-mail correspondence, low level of fuel in bunkers and demolished parts of a ship) were taken into consideration when intent to scrap a ship was established in the Seatrade53 case from the first instance in the Netherlands. In this case, a shipowner was fined for the first time in history for beaching four ships in India, Bangladesh and Turkey. The decision was, however, based on the EU Waste Shipment Regulation no 1013/2006, but, as it will become apparent in Part 2.2.4.1, the evaluation of intent in EWSR rests on the same moments as in the Basel Convention.
These cases reveal that it is possible for the authorities to establish shipowners’ intent to illegally scrap an end-of-life vessel by looking at objective factors. Obsolete ships which are to be scrapped fit therefore the wording “disposed of or are intended to be disposed of”.
2.2.2.3 “State of Export” and “State of Import”
The Convention states further in Article 2 (10) and (11) what is considered by “state of export” and “state of import” correspondingly.
“State of import” is the state to which the transport of waste is planned or takes place.
53 District Court of Rotterdam judgement March 2018 nr. 10/994550-15.
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“State of export” is defined as the state from which a transboundary movement of waste is planned to be initiated or is initiated. This is, consequently, the state which has the responsibility for delivering PIC.54 However, it does not follow from the wording what exactly is to be considered as an export state: is it the state of the departure port, is it the state where the vessel is registered or is it the state where the owning company is registered? The wording indicates that, most likely, it is the state from which the transboundary movement physically55 is taking place or is planned to take place, in other words the state of the departure port. Accordingly, the port state is responsible for ensuring that the requirements for export are fulfilled.
2.2.2.4 “Transboundary Movement”
The next condition regulated by the Convention is “transboundary movement” which is defined in Article 2 (3) as “any movement of hazardous wastes or other wastes from an area under the national jurisdiction of one State to or through an area under the national jurisdiction of another State or to or through an area not under the national jurisdiction of any State, provided at least two States are involved in the movement”.
The wording indicates that transboundary movement takes place when waste crosses different jurisdictions: from an area under the national jurisdiction of one state to or through an area under the national jurisdiction of another state.56 If a ship is then considered as waste, the regulation will be applicable if the vessel sails from the Norwegian territorial waters into the waters of, for instance, India, Bangladesh or Pakistan.
From this it can be deduced that no “transboundary movement” will occur if the vessel has been on high seas (or has not crossed jurisdictions of the Convention’s states) when the shipowner decided to scrap it, and then proceeded straight to the scrapyard.
Consequently, the Convention can be circumvented by selling ships in neutral waters or by waiting with the decision to scrap a vessel until she arrives in the waters of the state where she is to be scrapped57 or the high seas. This is a loophole in the legislation which is taken advantage of by selling vessels to cash buyers in neutral waters or outside Europe or in a state not a party to the Basel Convention.
54 See Part 2.2.2.6.
55 Ulfstein (1999) p. 3, Psaraftis (2019) p. 225, Moncayo (2016) pp. 303-304.
56 Kummer (1992) p. 52.
57 Ulfstein (1999) p. 16.
13 2.2.2.5 Compatibility with UNCLOS
According to the main principle in the law of the sea and United Nations Convention on the Law of the Sea (UNCLOS), “the constitution for the oceans”, ships have the right of innocent passage on the territorial seas. Can then the Basel Convention contravene UNCLOS by restricting ships on their last voyage to a scrapping yard?
The navigational right of the passage under UNCLOS is subject to the condition that it be
“innocent”. Innocence is not an absolute right, however.58 It has been defined negatively to mean passage that is not “prejudicial to the peace, good order or security of the coastal state”.
An end-of-life ship entering the territorial waters of a state can be a source of willful and serious pollution if it runs counter to the UNCLOS Convention.
UNCLOS imposes a general obligation upon the parties to protect and preserve the marine environment, pursuant to Article 192. It implies that the parties must take all measures necessary to prevent and reduce pollution of the maritime environment from any source,59 including land-based sources.60 Scrapping of ships is an example of such land-based activity.61 It follows further from Article 194 (2) that the states shall take all measures necessary to ensure that pollutants do not spread beyond the areas where they exercise sovereign rights under this convention. Article (3) (a) states further that these measures shall cover those designed to minimize “the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping”.
This means that coastal states may take steps in its territorial waters to prevent the passage of ships at the end of their operative life which may not be considered innocent under UNCLOS, meaning that the Basel Convention does not contravene the UNCLOS Convention.
This conclusion was supported by a ruling in the Sandrien case in 2002. The Dutch authorities detained a ship suspecting that the owner would send it for scrap to India with no given notice. The owner claimed, inter alia, that the detention of his ship was a breach of UNCLOS.
The Court stated, however, that the two conventions did not impede each other.
58 Puthucherril (2010) p. 118.
59 UNCLOS Article 194 (1).
60 UNCLOS Article 207.
61 Ishtiaque (2020) p. 72.
14 2.2.2.6 PIC
Provided that the obligations in the Basel Convention are exercised, and no import ban has been adopted, the movement of hazardous waste is not prohibited between parties as long as the state of export has been granted a prior informed consent (PIC). This is another important instrument governed by the Convention which sets out the duty of a state of export to declare of the hazardous waste being exported which is regulated in Articles 6 and 7 and in Annex V (A) of the Convention.
The procedure is then as follows. Firstly, the involved states must designate a competent authority for administering the PIC procedure, according to Article 2 (6), Article 5 (1).
Secondly, the state of export must notify the authorities of the state of import and transit states of any intended transboundary movement pursuant to Article 6 (1). Finally, the state of import has to reply in writing to this notification by either accepting or declining it or requesting additional information.
Without prior approval of the importing state, the Parties shall prohibit export of hazardous wastes and other wastes to other states.
2.2.2.7 “Illegal Traffic”
Any transboundary movement of hazardous waste without notification to all the states concerned, or without the necessary consent from the states concerned, renders the transport
“illegal traffic”, cf. Article 9.
In order to prevent and punish illegal traffic, the parties to the Convention have an obligation to adopt and enforce national legislation, according to Article 4 (4) and Art 9 (5). More on this will follow from Part 3.6.
As analyzed, the Basel Convention has a broad scope and is de lege lata applicable to end-of- life ships.62
2.2.3 Background to EU Waste Shipment Regulation 1013/2006
In an effort to strengthen protection to developing countries and since the Basel regime turned out to be weakened by “more or less lawful ways of circumventing its requirements”,63 the
62 Engels (2013) p. 131.
63 Pozdnakova (2019) p. 62.
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EU adopted the Waste Shipment Regulation no 1013/2006 (“EWSR”). As it follows from its preamble, the purpose of the Regulation is “protection of the environment”. EWSR is applicable for transport of waste in the EU, EFTA, OECD states and outside EU for member states to the Basel Convention. Thus, EWSR becomes applicable only to shipments of waste within or through the Community, to or from non-OECD states, pursuant to Article 1. If a decision to scrap a vessel is taken when she is outside the EU and is not subsequently returning to European waters, EWSR never becomes applicable.
2.2.4 Obligations under EU Waste Shipment Regulation 1013/2006
EWSR incorporates the Basel Convention in the EU/EEA countries, but also extends64 the obligations outlined in the Convention. Firstly, EWSR covers all types of wastes and, secondly, it implements the Basel Ban Amendment65 which prohibits shipment of waste destined for disposal to any developing non-OECD states,66 pursuant to Article 34.
According to Article 1 (2), EWSR becomes applicable when there are “shipments of waste”
between member states (within the Community or with transit through third countries), imported into the Community from third countries, exported from the Community to third countries, or in transit through the Community, on the way from and to third countries. This presupposes that waste must cross jurisdictions of different territories, which follows from Article 2 (34). The same provision states that “shipment” is transport of “wastes” (2.2.4.1) destined for “recovery” or “disposal” (2.2.4.2).
2.2.4.1 “Waste”
The first question is whether a ship at the end of its operative life is a “waste”. According to Article 2 (1), “waste” is defined by Directive 2006/12/EC Article 1 (1) (a) which says that it is
“any substance or object set out in Annex I which the holder discards or intends or is required to discard”.
If one compares this wording to the wording of waste in the Basel Convention, one can see that EWSR relies on the notion of discarding, while the Convention focuses on the notion of disposal.67
64 Kummer (1992) pp. 136-137.
65 Amendment to the Basel Convention entered into force in 2019 but was implemented for the EU already in 2006 by EWSR.
66 E.g. Bangladesh, India, and Pakistan.
67 Moncayo (2016) p. 306.
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The ordinary meaning of “discard” implies getting rid of something, especially as useless or unwanted.68 The concept of discarding has not been clarified yet.69 However, the ordinary meaning of the notion fits well for the recycling of end-of-life ships.
EWSR also operates with the notion of intent, an Achilles’ heel of the Basel Convention as well as this Regulation. The European Court of Justice (ECJ) has given guidance on how one can establish waste and intent in Case C-418/97. The court declared that whether something is a waste will depend on the specific circumstances of the object or substance, and the outcome will be decided on a case-by-case basis, cf. paragraph 63 in the decision. The court also stated in C-242/12 that in order to establish intent to discard a waste, one should take all circumstances of the case into consideration.
An assessment of whether an end-of-life ship is a waste and whether one discards it or intends to discard it will be similar to the procedure one undergoes when establishing whether a ship is a waste under the Basel Convention, see part 2.2.2.1 and 2.2.2.2.
2.2.4.2 Recovery or Disposal
Unlike the Basel Convention, EWSR establishes different regulations depending on the type of treatment70 applied to waste when it is discarded: whether it is meant for disposal or recovery.
All exports of waste outside the Community (EU and EFTA States) destined for disposal shall be prohibited according to Article 34 (1). Pursuant to Chapter 1, movement of waste within the EU for disposal is allowed after the PIC procedure which resembles the PIC procedure in the Basel Convention.
Legal effects of wastes destined for recovery will be different depending on the type of waste.
If these wastes are green-listed, the movement will depend on whether the waste is transported to an OECD state or to a non-OECD state. In the first case the movement is subject to general information requirements according to Article 18. In the latter case, the importing state can choose to: a) prohibit the movement, b) allow the movement after the PIC procedure is complied with, or c) allow the movement subject to general information requirements.
68 Merriam Webster Dictionary (b) (unknown date).
69 Moncayo (2016) p. 306.
70 Article 1 (1).
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If the wastes meant for recovery are amber-listed, then its transport to an OECD state will require a PIC procedure. Transport to non-OECD states for amber-listed wastes is prohibited.
Furthermore, transportation of hazardous wastes destined for recovery from EU and EEA states to non-OECD states is prohibited, pursuant to Article 36.
After having outlined the legal effects of different types of operations with waste, the question is whether demolishing a vessel is a disposal or recovery.
The wording “disposal” implies that the waste must be discarded or dumped. It follows from Article 3 nr. 19 of the Directive 2008/98/EC that “disposal” means any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I of the Directive defines disposal, inter alia, as a “land treatment (e.g. biodegradation of liquid or sludgy discards in soils, etc.)” and “release into seas/oceans including sea-bed insertion”. When a vessel is being beached and demolished at a scrapyard with poor environmental records and unsafe scrapping conditions, a whole array of harmful chemicals like asbestos, lead, mercury and oil71 penetrate both into the soil, sea waters and sea-bed adjacent to the scrap facility, polluting72 the scrapyard and areas around it. As a consequence, the term “disposal” is applicable for scrapping of ships.
When it comes to the second alternative, the wording “recovery” implies that the waste must be recycled or reused. Article 3 of the Directive describes recovery as any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function. Annex II of the Directive defines recovery as “[r]ecycling/reclamation of metals and metal compounds”. Ship recycling, which provides scrap steel for rerolling and melting for a reuse, is a recovery process.
Both disposal and recovery alternatives fit for demolishing a vessel.
The system is, however, built up so that waste treatment operation may not be classified simultaneously as both disposal and recovery within the meaning of the waste directive.73 In the ECJ’s judgements, two different principles have been formulated for determining whether a disposal or recovery operation has taken place,74 without providing any guidance on when and which principle should apply:
71 Ryngaert (2018) p. 226, Puthucherril (2010) p. 33.
72 Psaraftis (2019) p. 223, Galley (2014) p. 60.
73 C-307/00 paragraph 99.
74 Seatrade paragraph 4.3.5.2.
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I. The ECJ declared in Case C-116/01 that wastes should be classified as being either disposed of or recovered, “taking into account only the first operation that the waste is to undergo subsequent to shipment”. The first operation a ship undergoes after arriving at a ship recycling yard using a beaching method is usually dismantling of parts of the ship (like asbestos, HCFCs and other hazardous substances) mostly by hand, which is a disposal process.75 This can indicate that beached ships are classified as waste destined for disposal.
The same conclusion is supported in the legal theory.76
II. At the same time, in Case C-6/00 and in its order of February 2003 in joined Cases C- 307/00 through C-311/00, the ECJ ruled that, in order to determine whether a disposal or recovery operation within the meaning of the Directive is involved, it is necessary to determine, on a case-by-case basis, whether the main purpose of the operation is to enable the waste to fulfil a useful function by substituting it for other materials which would otherwise have had to be used for this purpose, in which case the operation is to be considered a recovery operation. According to this principle, ships can be regarded as waste intended for recovery since the main purpose of the operations carried out on the vessels is to recover the many tons of steel for reuse.
The District Court of Rotterdam implemented the second principle in the Seatrade case, stating that although the ships also contained considerable quantities of hazardous waste, which had to be disposed of, it could not outweigh the overwhelming quantity of steel released for reuse.77 Use of this principle is also supported in cases where it is impossible to identify the first operation a ship undergoes after shipment. Thus, the court concluded that the ship was regarded as waste intended for recovery.
It is therefore unclear which of the two principles established by the ECJ should be implemented when choosing between recovery and disposal. One can say that the first method (I) is difficult to prove, and, more importantly, easy to circumvent by choosing what the first operation will be after the ship arrives at the scrapyard. For the sake of harmony in the legislation, it is more reasonable to use the second method (II) by looking at the main purpose of the operation. Moreover, this method is not as rigid as the first one and takes into consideration all circumstances of a case in question.
Therefore, demolishing an end-of-life vessel is more likely to be considered as recovery.
Thus, Article 34 (1) does not become applicable here. Since scrapping a ship is a recovery
75 Moncayo (2016) p. 306.
76 Ibid p. 307.
77 Seatrade paragraph 4.3.5.2.
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procedure, the legal effects will depend on the type of waste an end-of-life vessel is considered to be.
2.2.4.3 Hazardous Wastes
As mentioned, EWSR prohibits transport of hazardous wastes from EU/EEA states to non- OECD states, pursuant to Article 36 (1) (a), which applies for wastes destined for recovery.
Wastes are categorized as hazardous provided they exhibit one or several of the properties established in Annex III of Directive 2008/98/EC as mentioned in its Article 3 (2), e.g., toxic, flammable, irritant, and carcinogenic substances. This includes asbestos, lead, mercury, oils and arsenic which are found in ships. Moreover, as described earlier, it has been decided by COP-7 that end-of-life ships are hazardous waste in terms of terminology used in the Basel Convention. If one uses the principle established by the Vienna Convention Art 31 (3) (a), the same interpretation should be used for hazardous waste under EWSR, so that ships can be considered as hazardous waste also under EWSR.
The same conclusion is supported in the Sandrien case (paragraph 4.3.5.3). The detained ship contained asbestos in its hull and was considered hazardous waste, which rendered its movement towards India illegal.78
EWSR also implements Green lists. Transportation of waste on the Green list for recovery is excluded from the regulatory requirements. However, old end-of-life ships with dangerous built-in materials in its hull do not classify as green waste which may be sent to a third State for recovery.79
It can be therefore presumed that end-of-life ships are hazardous waste, and it is prohibited to transport them to non-OECD states, cf. Article 36 (1) (a) and the Seatrade case (paragraph 4.3.5).80 Shipment of waste effected contrary to Article 36 is regarded as illegal shipment, pursuant to Article 2 (35) (f).
Contrary to this conclusion however, the Tide Carrier case (p. 15) did not use Article 36 since the court stated it was unclear whether Article 36 regulated shipbreaking and since the prosecutor claimed Article 35 nr. 4 (a), cf. Article 37 instead of Article 36 as a legal ground in the charge.
78 Moncayo (2016) p. 306.
79 Pozdnakova (2019) p. 72, Moncayo (2016) p. 307.
80 UKP&I (2018).
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If Article 36 does not become applicable for ships, an alternative might be therefore to use Article 35 nr. 4 (a) according to which “shipment may take place only if the notifier has received written consent from the competent authorities of dispatch, destination and, where appropriate, transit outside the Community and if the conditions laid down are met”. It will mean that the shipowner in Norway must first receive a consent from the Norwegian Environment Agency before he can scrap the vessel in a non-OECD state. But since the Agency is not likely to give this consent, the outcome is likely to be the same as when using Article 36 – prohibition to scrap.
Since there lacks clarity in the legal grounds, there is an need for further research on how exactly EWSR regulates transport of obsolete ships for scrap.
2.3 The Hong Kong Convention
2.3.1 Background to the Hong Kong Convention
Following increased international criticism of the shipping industry’s scandalous scrapping practices, the IMO81 adopted the Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ships in May 2009. Its overarching goal is to curtail the movement of ships for recycling at shipyards with unsafe procedures by establishing standards for ship recycling and putting responsibility for enforcement on the vessel’s flag state and the recycling state.82 Pursuant to Article 1 (1), the goal of the Convention is to “prevent, reduce, minimize and, to the extent practicable, eliminate accidents, injuries and other adverse effects on human health and the environment caused by Ship Recycling, and enhance ship safety, protection of human health and the environment throughout a ship’s operating life”.
2.3.2 Obligations under the Hong Kong Convention
The Convention provides a “from cradle-to-grave”83 approach, meaning that its rules apply to ships from the moment they are being designed, built, and maintained and till they are recycled. Main obligations set out in the convention stipulate requirements for ships, ship scrapping facilities, as well as reporting requirements.84
81 The International Maritime Organisation.
82 NGO Shipbreaking Platform (unknown date) (a).
83 EU Commission COM/2010/0088 (2010).
84 Engels (2013) p. 35.
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A salient requirement laid down in the Hong Kong Convention is keeping an inventory of hazardous materials (the IHM Certificate) on board a ship throughout its life cycle85 which is subject to periodical renewal surveys. The rationale behind it is to gather exact information regarding the location and the number of hazardous materials in order to facilitate recycling procedures and, thus, strengthen the protection of human health and the environment during the recycling process.86
Further, the flag state is responsible for issuing of an International Ready for Recycling Certificate, according to Regulation 8 (6) and Regulation 11 (11).
Another key feature is that ships taken out of service can only be recycled at an authorized scrapyard.87
The Convention has not entered into force to date. Pursuant to Article 17 it will do so 24 months after it has been ratified by 15 states, representing 40 % of world merchant shipping by gross tonnage, with a combined maximum annual ship recycling volume not less than 3 % of their combined tonnage.
2.4 EU Ship Recycling Regulation 1257/2013
2.4.1 Background to EU Ship Recycling Regulation 1257/2013
The Hong Kong Convention’s problems with ratification spawned a regulatory process culminating in the EU Ship Recycling Regulation no 1257/2013 which was adopted under the auspices of the European Parliament and Council in 2013 and which applies to ships flying the flag of the EU and EEA states.88 Exceptions to this are warships, naval auxiliary, or other ships owned or operated by a state and used only on government non-commercial service as well as ships of less than 500 gross tonnage.89 The same applies to ships operating throughout their life only in waters subject to the sovereignty or jurisdiction of the Member State whose flag the ship is flying. Pursuant to nr. (10) in the preamble, ships flying the flag of a Member State falling under the scope of this Regulation are excluded from the scope of EWSR. This means that ESRR is applicable for ships registered in the EU/EEA states, while EWSR will
85 Cf. Regulation 5.
86 Engels (2013) pp. 36-37.
87 Article 6, Regulation 8 (1).
88 Article 2 (1).
89 Article 2 (2).
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apply for ships not registered in the Community, but which sail in the EU/EEA waters, or which fall outside of the scope of ESRR.
2.4.2 Obligations under EU Ship Recycling Regulation 1257/2013
The purpose of ESRR is implementation of the Hong Kong Convention with its provisions on periodical surveys, reporting obligations, certification processes and scrapping procedures in the EU and EEA states.90 At the same time, ESRR lays down a stricter regime than the Convention when it comes to the Inventory of Hazardous Materials Certificate and ship recycling facilities. For instance, the IHM Certificate that a vessel should keep from its construction until its demolition includes more substances (PFOS and HBCDD)91 than those listed in the Hong Kong Convention.92
Another focal point of ESRR is the shipowner’s obligation to notify in writing the relevant administration of the intention to recycle the ship in a specified recycling facility pursuant to Article 6 (1) (b). The shipowner must at the same time hold a Ready for Recycling Certificate issued by the administration or a recognized organization, according to Article 6 (2) (c). The scrapyard issues then a Ship Recycling Plan, which is another condition for scrapping a vessel.
The amount of cargo residues, remaining fuel oil, and waste on board should be minimized when the ship enters the recycling facility – a requirement which was originally laid down in the Hong Kong Convention Regulation 8 (2) and (3). Shipowners must ensure that tankers arrive at the ship recycling facility with cargo tanks and pump rooms in a condition ready for certification as safe-for-hot work, cf. Article 6 (3).93
Further, ESRR allows ship demolishing outside the European Union in authorized facilities included on the European list94 and sets out more detailed requirements to be met by the recycling yards which qualify for this list. Shipyards employing the beaching method will not consequently be authorized,95 which is also supported indirectly by nr. (7) in the preamble and the fact that ESRR requires that ship scrapping facilities “operate from built structures”, demonstrate “control of any leakage, in particular in intertidal zones” and ensure that handling
90 Nr. 5, 7 of the preamble, Article 1, Pozdnakova (2019) p. 74, Moncayo (2016) p. 307.
91 Ryngaert (2018) p. 229, Ormond (2012) p. 57.
92 Moncayo (2016) p. 307.
93 Pozdnakova (2019) p. 75.
94 Article 6 (2) (a).
95 Moncayo (2016) p. 307.
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of hazardous materials and waste generated during recycling occurs “on impermeable floors with effective draining systems”.96
2.5 Summing Up
To sum up, it can be said that ship scrapping is nowadays regulated in Norway by two parallel regulations: EWSR (together with the Basel Convention) and ESRR. Export of non- European-flagged ships to non-OECD states is prohibited by EWSR (either Article 36 or 35 nr. 4) and the Basel Convention, while ESRR applies to EU/EEA-registered ships which may only be recycled at scrapyards on the European list.
96 Article 13.
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3 Shipowner’s Criminal Liability for Breaching the Legal Framework
3.1 Introduction
The research question in Part 3 is how the shipowner’s criminal liability for breaching the outlined framework is regulated in Norway.
The Norwegian Criminal Act sets out four fundamental conditions which must be met for criminal liability.
Firstly, the offender must have breached a penal provision found in a law. Criminal sanctions may only be imposed if authorized by law, cf. § 96 of the Constitution of the Kingdom of Norway, Article 7 of the European Convention on Human Rights and § 14 of the Norwegian Criminal Act. This is also known as a principle of legality.97
Secondly, the offender has to have a sound mind and not be below the age of 15 at the time of the criminal deed, pursuant to § 20 of the Criminal Act.
Thirdly, according to § 21, the Criminal Act is applicable only to criminal offences committed with intent, unless negligence is explicitly included98 in a specific provision. § 22 establishes three forms of intent: where the offender has committed the crime deliberately (letter a), or with the awareness that the act with certainty or most likely fits the description of the offence (letter b), or acted with so-called “dolus eventualis” where the offender considers it possible that the act fits the description of the offence, and chooses to act even if that should be the case. Furthermore, according to a so-called “cover principle” («dekningsprinsippet»), intent must cover all elements of the description of a penal provision.99
Fourthly, there must be absence of such precluding circumstances as necessity (§ 17), self- defence (§ 18), self-enforcement (§ 19) and permission (non-statutory law).
Pursuant to § 1, the provisions of the Norwegian Criminal Act Part I are applicable to violations of the provisions in the Criminal Act and provisions in other formal laws.
97 See Part 3.2.
98 Jacobsen (2015) p. 171.
99 Rt-2015-1124 (11), Rt-2006-466 (19).
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Furthermore, it is a precondition that the committed act falls under the geographical scope of the Criminal Act. Pursuant to § 4 (1), the criminal legislation applies to acts committed in Norway, including Svalbard, Jan Mayen and the Norwegian dependencies. § 4 (2) (c) of the Act states that the criminal legislation applies to acts committed on Norwegian vessels.
The Criminal Act has also grounds for punishing a person for attempting to commit an offence (§ 16) and contributing to a violation (§ 15). Chapter 14 of the Act has rules on enterprise penalties – as stated in § 27, when a penal provision is violated by a person who has acted on behalf of an enterprise, the enterprise can be liable to punishment.
As mentioned, the first condition of criminal liability is that the offender must have breached a penal law provision. The main focus of this study will be to find out whether the Norwegian legislation contains penal provisions for scrapping ships illegally. The three other conditions will therefore fall out of scope. In this regard two questions will be studied:
1. Can the shipowner receive punishment in Norway for selling a ship for scrap in violation of the Basel Convention and EWSR (Part 3.6.)?
2. Can the shipowner receive punishment in Norway for selling a ship for scrap in violation of ESRR (Part 3.7)?
In order to provide answers to these questions, it is important to describe basic grounds for criminal liability in more detail first.
3.2 The Principle of Legality
A criminal penalty is a strong intervening measure for any citizen which is only allowed provided there are legal grounds for it. This is often described as the principle of legality, also known as no punishment without law principle, or nulla poena sine lege, which is found in § 96 of the Constitution of the Kingdom of Norway and § 14 of the Norwegian Criminal Act.
This principle is a key instrument of Norway’s democratic legal system100 and has several features.
Firstly, it presupposes that the offender must have acted in violation of a formal law or regulation issued pursuant to a formal law. It is a requirement in Norway that the criminal
100 Skjerdal (2001) p. 341.
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liability can only be established pursuant to a written101 law or regulation, and not a precedent established in a previous legal case. However, in English speaking countries, this principle is different, as it is used for establishing criminal liability pursuant to both written laws and precedents.102 For this reason, Article 7 of the European Convention on Human Rights has a general wording stating that “[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed”. The wording of the Convention was made so general to be applicable for jurisdictions of both civil law and common law states.
However, the Constitution of the Kingdom of Norway goes further than the European Convention on Human Rights and prohibits criminal liability based on precedents.
Secondly, the principle of legality implies that criminal liability can only be established on grounds found in the Norwegian law.103 Neither other countries’ legislation nor the international law can provide such grounds. If an international treaty ratified by Norway states that a breach of an obligation must be criminalized, it is not sufficient to trigger criminal liability.104 For the treaty to be effective it must be applied at a national level in Norway, which is known as a dualistic principle.105 For EU regulations which have been included into the EEA Agreement to come into effect in Norway, they must be incorporated or transformed into the Norwegian legislation in order to have a binding effect, cf. Section 7 of the European Economic Area Agreement.106
Thirdly, the law must be adequately accessible.107 As follows from Case of Silver and Others v. the United Kingdom paragraph 87, the accessibility requirement must ensure that it is possible to acquire knowledge of a norm. This is usually best ensured by publishing the norm.
Moreover, the law’s wording must be clear. This means that a norm must, firstly, be formulated with sufficient precision108 by stating clearly what delicts trigger criminal liability (give clear definition of an offence) and, secondly, have a criminal threat («straffetrussel») which would state what type of penalty can be imposed for the violation of the law or regulation in question. As the Supreme Court of Norway stated in Rt. 1933 s. 212 p. 213,
101 Andenæs (2016) p. 105, Aall (2021) p. 108.
102 Andenæs (2016) p. 106.
103 Eskeland (2017) p. 101.
104 Rt-1999-1192 (1196).
105 Evans (2018) p. 388.
106 Sejersted (2011) p. 196.
107 Aall (2021) pp. 108-109, Case The Sunday Times v. The UK paragraph 49, Rt-2002-1069 p. 1075, Rt-2014- 1105 (30).
108 Case The Sunday Times v. The UK (49).
