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Print articleMARPOL and The State-Sanctioned Destruction of Crude Oil-Carrying Vessels on Nigerian Waters
December, 2023 - Rafiq Anammah, Rafiq Anammah, Linda Osuagwu, Sinmiloluwa Lala
The International Convention for the Prevention of Pollution from Ships (“MARPOL” or the “Convention”) was promoted by the International Maritime Organisation (“IMO”). It was adopted on the 2nd of November 1973 to tackle the menace of marine pollution by oil, chemicals, and other hazardous materials from ships through operational or accidental causes. Following a spate of tanker accidents between 1977 and 1978, the 1978 Protocol was adopted and because the 1973 Convention had not come into force, the 1978 Protocol absorbed the 1973 Convention. Both the 1973 Convention and the 1978 Protocol entered into force on the 2nd of October 1983.
MARPOL remains the most important international maritime convention. It aims to reduce the volume of harmful substances that enter or are released into the maritime environment, especially the oceans.
The Convention includes 6 (six) technical annexes, namely:
- Annex I- Regulations for the Prevention of Pollution by Oil (entered into force 2 October 1983)
- Annex II- Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk (entered into force 2 October 1983)
- Annex III- Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form (entered into force 1 July 1992)
- Annex IV- Prevention of Pollution by Sewage from Ships (entered into force 27 September 2003)
- Annex V- Prevention of Pollution by Garbage from Ships(entered into force 31 December 1988)
- Annex VI- Prevention of Air Pollution from Ships (entered into force 19 May 2005)
Annex 1 is the relevant instrument for this article because its provisions are relevant to the current trend of the setting ablaze of oil-carrying vessels by Nigerian security agencies in Nigerian waters which causes the discharge of oil and other hazardous substances from those vessels into the marine environment and, thereby, polluting the waters.
Nigeria has in recent years witnessed a humongous wave of crude oil theft which has negatively impacted the country’s revenue and by extension the economy. In a bid to curb this menace, the government set up a joint task force comprising Nigerian security agents and private contractors and saddled it with task of combatting crude oil theft and vandalization of oil pipelines.[1]
While the activities of the operators of the oil and gas industry have turned Nigeria into an environmental emergency as far as marine pollution is concerned, the Nigerian security agencies have willfully made themselves particeps criminis in the perpetration of this environmental disaster with their current propensity for setting ablaze oil-carrying vessels accused or suspected of crude oil theft in Nigeria. In tackling and a bid to deter crude oil theft and to prevent the escape of vessels carrying stolen crude oil, the Nigerian security agencies have adopted the unconventional approach of setting such vessels ablaze together with their crude oil contents. In recent years, Nigeria has witnessed a growing culture of vessel destruction by security agencies who burn vessels laden with stolen crude oil. In July 2023, Security Operatives of the Joint Task Force, Operation Delta Safe, in collaboration with Tantita Security Services Nigeria Limited, set ablaze an intercepted vessel with a capacity of 800 metric tonnes “MT Tura 11” allegedly carrying about 150 metric tonnes of stolen crude oil in the Escravos area of Delta State[2]. Before this, in October 2022, In October 2022, another vessel, “MT DEIMA”, which was allegedly laden with 1500 metric tonnes of stolen crude oil, was also arrested and set ablaze in the Warri Escravos River by security operatives.
This growing culture of vessel destruction by security agencies has become a major cause of concern because of the environmental implications of this action. It is noted that one of the harsh effects of crude oil theft and pipeline vandalization is environmental degradation which Nigeria has been contending with for many years. By burning crude oil-carrying vessels, the security agencies wreak havoc on the marine environment. Thus, in an attempt to solve one problem, the security agencies create another!
Ratification of and Implementation of MARPOL by Nigeria
Nigeria is among 26 African countries that have ratified MARPOL.[3] The Convention was ratified by Nigeria in May 2002 through the International Convention for the Prevention of Pollution from Ships 1973 and 1978 Protocol (Ratification and Enforcement) Act 2007 (No. 54 of 2007). The Merchant Shipping Act 2007 (“MSA”) and the Merchant Shipping (Ship Generated Marine Waste Reception Facilities) Regulations 2012 (“2012 Regulations”) were enacted to implement the MARPOL.
Section 336 of the MSA makes the provision of MARPOL applicable in Nigeria. The MSA vests the responsibility for the prevention of pollution from ships[4] and for making regulations[5] in this regard on the Minister in charge of matters relating to merchant shipping. The Minister may also by order make provisions he deems necessary for giving effect to any provision of the United Nations Convention on the Law of the Sea 1982 (“UNCLOS”) for the protection and preservation of the marine environment from pollution by ships.[6]
Destruction of Crude Oil-Carrying Vessels on Nigerian Waters
MARPOL specifically addresses the prevention of pollution from ships, including the discharge of oil and other harmful substances into the sea. The deliberate destruction of vessels carrying crude oil could potentially lead to oil spills, in violation of the provisions of MARPOL, particularly Annex 1.
The Convention defines oil to include “petroleum in any form including crude oil, fuel oil, sludge, oil refuse, and refined products (other than petrochemicals which are subject to the provisions of Annex II of the present convention) and without limiting the generality of the foregoing, includes the substances listed in Appendix one to this Annex.”
Regulation 9(1) of Annex 1 specifically provides that the discharge of oil or oily mixtures from ships into the sea is prohibited, save for a few exceptions. These exceptions are provided for in Regulation 11 as follows:
- The discharge into the sea of oil/oily mixture necessary to secure the safety of a ship or life at sea;
- The discharge into the sea of oil/oily mixture resulting from damage to a ship or its equipment:
- Provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the discharge; and
- Except if the owner or the Master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or
- The discharge into the sea of substances containing oil, approved by the Administration.
The Convention further provides that where visible traces of oil are observed on or below the surface of water in the vicinity of a ship, the Government of Parties to the Convention should investigate facts relating to the issue as quickly as reasonable.[7] The investigation should include wind and sea conditions, the track and speed of the ship, and other relevant oil discharge records.
However, it is sad that in Nigeria, the agents of the government who should prevent and control marine pollution are the ones engaging in the destruction of oil-carrying vessels on Nigerian waters and the concomitant pollution of the marine environment. It should be noted that the destruction of the vessels will make it difficult to investigate the oil thefts because the subject of the investigation will have ceased to exist. The exceptions under Regulation 11 are clear and unambiguous. They do not apply to the burning of vessels on the waters and polluting same by causing a discharge of oil and other hazardous substances into the sea.
While the security operatives argue that destroying 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.[8] 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[9] after the offender has been prosecuted and convicted in line with the provisions of relevant statutes.
It is noteworthy that the Armed Forces Act[10] (“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[11] under this Act who wilfully or maliciously sets fire –
- to a public building, dwelling house, an office, or any structure whatsoever, movable, or immovable, whether completed or not, occupied or not; or
- to any vessel, ship, aircraft, railway track or wagon, or vehicle or thing; or
- 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 for arson and will be liable to life imprisonment on conviction by a court-martial.
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[12].
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 the lack of compliance with the existing laws.
Nigeria is a signatory to UNCLOS. UNCLOS mandates States “acting especially through competent international organizations or diplomatic conference, 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.”[13] 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:
- 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.
- 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.[14] 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.
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[15] 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.[16] Where the offender is convicted, the final order of forfeiture[17] can be made by the court and the property disposed of by sale or otherwise.[18] Where the property is sold, the proceeds of the sale shall be paid into the Consolidated Revenue Account of the Federation.[19] However, if the offender is discharged and acquitted, the court may revoke or confirm the interim order of forfeiture.[20] 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.[21]
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 impacts.
