This case concerns a request for a preliminary ruling from the Korkein Oikeus, Supreme Court of Finland, on the proper construction of art 220.6 of UNCLOS, and art 7(2) of Directive 2005/35/EC on ship-source pollution, a provision which reiterates the content of art 220.6 of UNCLOS. Specifically, the Finnish Supreme Court seeks guidance on the circumstances in which a coastal state may instigate proceeding against a foreign vessel that is the source of an oil spill in the exclusive economic zone (EEZ) of the coastal state in question.

Facts: The Bosphorus Queen is a dry cargo vessel registered in Panama. According to the Rajavartiolaitos (the Finnish Border Protection Authority) the vessel spilled oil into the sea while transiting through Finland’s EEZ on 11 July 2011.

The oil spread over 37 km in a strip roughly 10m wide. The surface area of the spill was estimated to be approximately 0.222km² and its volume between 0.898 and 9.050m³.

The Finish authorities imposed an oil spill fine of EUR 17,112 on the owners of the vessel. On the basis of the expert opinion commissioned, the authorities took the view that the spill had caused major damage or a threat of major damage to Finland’s coastline or related interests, or to resources of its territorial sea or EEZ.

The owners of the vessel brought an action before the Helsingin Karajaoikeus (Court of First Instance, Helsinki, Finland) sitting as a maritime court, seeking annulment of the decisions relating to the provision of security and the imposition of an oil spill fine.

In its judgment of 30 January 2012, the maritime court considered that it had been shown that Borphorus Queen had released at least 900 litres of oil, and given the environmental impact assessment, the court held that for the purposes of ch 3, para 1, of the law on environmental protection in maritime transport, the oil spill caused a threat of major damage. On those grounds, the maritime court dismissed the action.

By their decision of 18 November 2014, the Helsingin hovioikeus (Court of Appeal, Helsinki, Finland) dismissed the appeal brought against the judgment of the maritime court.

The owners appealed to the Finnish Supreme Court.

Entertaining doubts as to the correct construction of the relevant provisions of UNCLOS, the Finnish Supreme Court stayed the proceedings and referred 9 questions to the CJEU for a preliminary ruling.

Issues: The questions regarding the proper construction of art 220.6 of UNCLOS essentially concern two interrelated issues pertaining to the circumstances in which a coastal State may assert jurisdiction in its EEZ namely, the interests covered by coastal State jurisdiction and the evidence required to justify the adoption of enforcement measures against a vessel in transit.

Opinion: General principles and history of art 220

AG Wahl began by explaining that UNCLOS seeks to strike a fair balance between the interests of coastal States and those of other States, which may conflict.

He explained that freedom of navigation constitutes the bedrock of international law of the sea, and this principle is reflected in UNCLOS: as a corollary to freedom of navigation, coastal States have, as a rule, jurisdiction only over vessels navigating in their territorial sea, which is limited to 12 nautical miles from the baseline. Even then, that jurisdiction is circumscribed by the obligation to ensure free passage for vessels in transit.

Beyond that area, the starting point is that the flag State has jurisdiction over vessels flying its flag. It is for the flag State to set the safety, social and environmental standards to be applied and to enforce those rules in relation to vessels flying its flag. Not only that, however, the flag state must, in accordance with art 217 of UNCLOS, effectively enforce international rules and standards regarding ship-source pollution, no matter where an infringement occurs.

However, flag State jurisdiction beyond the territorial sea of a coastal State is subject to important exceptions. One of those concerns coastal State jurisdiction in the EEZ.

The EEZ is defined in art 57 of UNCLOS as an area beyond and adjacent to the territorial sea, extending to a maximum of 200 nautical miles from the baseline. The EEZ is subject to the legal regime set out in part V of UNCLOS (arts 55 to 75 thereof). By dint of art 56, the coastal State has, (limited) enforcement jurisdiction in that zone for the purposes of protecting adequately the marine environment.

In the second part of the 20th Century several international treaties were concluded in response to the growing concern over marine pollution. For example, the Intervention Convention was concluded in 1969 in the wake of the Torrey Canyon disaster. It granted all parties to the Convention the power to intervene on the high seas in cases where oil pollution threatened the sea or coastline as a result of a maritime casualty. That principle was reaffirmed in art 221 of UNCLOS.

Indeed, it seems generally accepted that flag State jurisdiction is on its own insufficient to combat ship-source pollution. The powers afforded to coastal States in art 220 of UNCLOS can be seen as reflecting the wish of the international community to devise tools for combating more efficiently ship-source pollution and to protect the marine environment as a common good. The AG noted that the Intervention Convention not only influenced the drafting or art 221 of UNCLOS, but also art 220.

It should not be forgotten that UNCLOS constitutes a framework convention that has been complemented by other international agreements, such as MARPOL 73/78.

All states must by dint of art 192 of UNCLOS protect and preserve the marine environment. Yet, in accordance with the principle of proximity, arts 220.3-220.6 of UNCLOS nevertheless assign jurisdiction also to the State what has the most obvious interest in doing so, namely the coastal State. In practice, the coastal State is arguably the State best placed to identify an infringement of the relevant international rules regarding ship-source pollution and to take, as the case may be, enforcement measures against the vessel in question.

To summarise, flag State jurisdiction remains the main rule under UNCLOS. Nevertheless, by conferring concurrent jurisdiction on the coastal State in the EEZ in the case of an infringement of the relevant international rules, UNCLOS reflects the recognised need to effectively protect the interests of the coastal State and protect and preserve, in an era of increasing exploitation of the seas, the marine environment as a common good for mankind.

Questions 1 to 4: the interests covered by art 220.6 of UNCLOS

(i) the notion of ‘coastline or related interests’

AG Wahl was of the opinion that the Intervention Convention undoubtedly constituted a part of the broader legislative context in which art 220.6 of UNCLOS operated, and consequently the meaning ascribed to ‘related interests’ in the Intervention Convention constituted a helpful benchmark for defining the interests covered by art 220.6 of UNCLOS.

The definition of ‘related interests’ adopted by the Intervention Convention is a broad one. AG Wahl failed to identify any reasons that would lend support to the view that a different reading should be adopted in the context of UNCLOS.

For these reasons, he took the view that ‘coastline or related interests’ must be interpreted as including all interests of the coastal State in the territorial sea and the EEZ pertaining to the exploitation of the sea and a healthy environment.

(ii) the notion of ‘any resources of its territorial sea or EEZ’

AG Wahl considered that the use of the word ‘any’ suggested that broad interpretation ought to be adopted, in accordance with the ordinary meaning of that word ie it must be understood as referring to all living and non-living resources irrespective of whether those resources can be directly exploited or not.

Second, an interpretation of ‘any resources’ according to which species of flora and fauna which are used by exploitable species for nutriment ought to be covered by the notion of ‘any resources of its territorial sea of the EEZ’ is in keeping with the ecosystem-based approach in marine environmental policy and the common fisheries policy endorsed by the European Union. That approach recognises the interactions within an ecosystem, including those between species, rather than considering species in isolation from the broader ecosystem. Those connections are also recognized clearly in UNCLOS, particularly in art 61.4 thereof.

Third, and most fundamentally, art 220 of UNCLOS is designed to ensure effective protection and preservation of the marine environment as a whole. It would be contrary to that objective to limit the scope of that provision to resources that are not directly exploited by the coastal State.

(iii) Summary

In summary, AG Wahl suggested that the answer to Q1 to Q4 referred should be that art 220.6 of UNCLOS and art 7(2) of Directive 2005/35 must be interpreted to the effect that, the notion of ‘coastline or related interests’ includes all interests of the coastal State in the territorial sea and the EEZ pertaining to the exploitation of the sea and a healthy environment and the notion of ‘any resources of its territorial sea of the EEZ’ includes both living resources, such as species of flora and fauna which are used by exploitable species for nutriment, and non-living resources.

Questions 5 to 7 and 9 and 10

By these questions the referring court sought guidance on the evidence required in order for the coastal State to instigate proceedings against a foreign vessel navigating in its EEZ in accordance with art 220.6 of UNCLOS and art 7(2) of Directive 2005/35.

(i) the interrelationship between arts 220.3, 220.5 and 220.6 of UNCLOS: three separate grounds of jurisdiction

As a preliminary point, AG Wahl explained it is generally accepted that art 220 of UNCLOS is based on a graded approach. Yet, each of the provisions in arts 220.3, 220.5 and 220.6 contains a separate ground of jurisdiction in favour of the coastal State. The grounds fall to be applied in different circumstances and they differ significantly as regards the measures the coastal Sate may take on the basis of each of them.

Art 220.3 gives the coastal State the right to request information from a foreign vessel in order to establish an infringement of international rules and standards regarding ship-source pollution.

Art 220.5 gives the coastal State the right to proceed to an inspection of a foreign vessel.

Art 220.6 gives the coastal State the right to instigate proceedings against a foreign vessel.

The grounds in arts 220.3 and 220.5 are clearly connected. On the one hand, both provisions concern circumstances where the coastal State suspects (that is to say, the State has clear grounds for believing) that a foreign vessel has infringed international rules and standards regarding ship-source pollution. The measures referred to in those provisions aim at establishing that the vessel is the source of the infringement in question.

On the other hand, in accordance with art 220.5 of UNCLOS, the coastal State may proceed to an inspection of a foreign vessel that has refused to cooperate with coastal State authorities only where the infringement under investigation has resulted in a substantial discharge causing or threatening significant pollution of the marine environment.

In contrast to arts 220.3 and 220.5, art 220.6 of UNCLOS deals with a situation where the coastal state has clear objective evidence of the infringement. Moreover, in order for the coastal State to have the right to instigate proceedings, the infringement must have resulted in a discharge causing major damage or threat of major damage to the interests protected by that provision.

Also in contrast to arts 220.3 and 220.5 of UNCLOS, there is no indication that the application of art 220.6 of UNCLOS would be contingent on the prior application of art 220.5. Those provisions simply govern distinct circumstances.

In the present case, the Finish authority had at its disposal aerial footage confirming that the Bosphorus Queen was the source of the spill in question. Nevertheless, clear objective evidence of an infringement by a foreign vessel is not in itself sufficient to justify the instigation of proceedings, that infringement must have resulted in discharge causing major damage or threat of major damage.

(ii) the threat of major damage referred to in art 220.6 of UNCLOS

Art 220.6 of UNCLOS lays down the ground of jurisdiction that allows a coastal State to instigate proceedings against a foreign vessel navigating in its EEZ. That said, the evidence required to impose sanctions on the foreign vessel in the proceedings referred to in art 220.6 of UNCLOS, such as the oil spill fine imposed in the present case, is not governed by that provision. The evidence required for the imposition of sanctions in those proceedings, and the amount thereof, remains, by contrast, a matter of national law of the coastal State concerned.

Returning to how a court should assess whether a threat of major damage exists for the purposes of instigating proceedings, AG Wahl expressed the following views:

1. comparing this notion with the notion of ‘the threat of significant pollution’ in art 220.5 should be resisted. The grounds should be assessed independently. ‘Pollution’ and ‘damage’ are two distinct concepts.

2. MARPOL 73/78 sets out the substantive international rules that govern oil pollution. Both art 220.3 of UNCLOS and Directive 2005/35 specifically refer to that convention. In accordance with MARPOL 73/78, for vessel of 400 gross tons and above, any discharge of effluent with an oil concentration exceeding 15 ppm is prohibited. In other words, any discharge beyond that concentration constitutes an infringement of MARPOL 73/78 for which a sanction should be imposed in accordance with art 4.2 of that Convention. Where, as here, the oil spill is visible to the naked eye, that limit has been significantly exceeded.

3.  Whether that is sufficient to cause a threat of major damage depends on the specific circumstances in which the spill occurred.

4. The factors that are relevant for assessing whether there is a threat of major damage may, for example, include the vulnerability of the area affected by the spill, the volume, the geographical location and the extent thereof, as well as the duration of the spill and the prevalent meteorological conditions in the area around the time of the spill.

5. In the present case, the oil spill occurred in the Baltic Sea, in the Gulf of Finland. The Baltic Sea is internationally recognized to be a special area characterised by geographical particularities and a particularly vulnerable ecosystem in need of special protection. Undoubtedly that circumstance should be taken into account in interpreting art 220.6 of UNCLOS, and determining whether the spill causes a threat of major damage.

(iii) Summary

In summary, AG Wahl considered that the fifth, sixth, seventh, ninth and tenth questions referred should be answered to the effect that a coastal State may exercise enforcement jurisdiction laid down in art 220.6 of UNCLOS and art 7(2) of Directive 2005/35 in circumstances where, that State has clear objective evidence that a foreign vessel is the source of a discharge that infringes applicable international rules and standards regarding ship-source pollution and that discharge can, in the specific circumstances of the case, reasonably be presumed to cause a threat of major damage to the marine environment. In determining whether a threat of major damage exists, particular importance ought to be placed on the vulnerability of the area affected by the spill, the volume, the geographical location and the extent thereof, as well as the duration of the spill and the prevalent meteorological condition in the area concerned.