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 proceedings against a foreign vessel that is the source of an oil spill in the exclusive economic zone (EEZ) of the coastal state in question.

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 Finnish 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 Bosphorus Queen had released at least 900 litres of oil, and given the environmental impact assessment, the court held that for the purposes of chapt 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 (requesting annulment of the fine).

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 Supreme Court of Finland.

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

AG Wahl considered that the questions referred by the Supreme Court regarding the proper construction of art 220.6 of UNCLOS essentially concerned 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. AG Wahl’s opinion is summarised in CMI 148.

Held: The CJEU began by setting out the status of the relevant conventions with regard to EU law. UNCLOS was signed and approved by the EU, and its provisions are an integral part of the EU legal order. UNCLOS is binding on EU states, and has primacy over secondary EU legislation, which must be interpreted as far as possible in accordance with the convention. The Court accordingly held it had jurisdiction to interpret the provisions of UNCLOS.

Questions 1 to 3

1. the notion of ‘coastline or related interests’ in UNCLOS art 220.6.

Having regard to art 31 of the Vienna Convention on the Law of Treaties 1969, a treaty must 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 light of its object and purpose.

The CJEU remarked that the expression ‘coastline or related interests’ was not defined in UNCLOS. Yet the expression used in art 220.6 of UNCLOS was the same as that used in the Convention Relating to Intervention on the High Seas 1969 (the Intervention Convention). The concept of ‘related interests’ is defined in art 2.4 of the Intervention Convention. 

Agreeing with AG Wahl, the CJEU held that it was clear from the legislative history of art 220.6 of UNCLOS that the contracting parties drew inspiration from the Intervention Convention. Therefore the meaning of ‘coastline or related interests’ in UNCLOS must in principle be the same as that of arts 1.1 and 2.4 of the Intervention Convention.

2. the notion of ‘any resources of its territorial sea or EEZ’

The CJEU accepted that when the Intervention Convention was adopted in 1969, the EEZ system was not yet part of international law. The ECJ found that UNCLOS gave recognition to the EEZ and thereafter governed its legal regime.

The CJEU held that the phrase ‘any resources in the EEZ’ in art 220.6, included living or non-living resources, just as jurisdiction over the exploitation of these resources was given to the coastal State via arts 56.1.a and 56.1.b of UNCLOS.

The CJEU also held that ‘any resources’ of the territorial sea of the coastal State referred to in art 220.6 of UNCLOS included non-living resources of the territorial sea.

3. Summary

The CJEU thus held that the expression ‘coastline or related interests’ in art 220.6 of UNCLOS must be interpreted as having the same meaning as the expression ‘coastline or related interests’ in arts 1.1 and 2.4 of the Intervention Convention 1969, it being understood that UNCLOS also applied to non-living resources of the territorial sea of the coastal State and to any resources in its exclusive economic zone. 

Question 4

Agreeing with AG Wahl, the CJEU held that art 220.6 of UNCLOS must be interpreted as covering both harvested species and also species associated with them and which are dependent on them, as such animal and plant species which feed on the harvested species.

The CJEU arrived at this conclusion having had regard to how:

1. art 220.6 UNCLOS refers to ‘any’ resources of the territorial sea or the EEZ of the coastal state, and the provision should accordingly be interpreted broadly (and should not exclude certain resources); and
2. the interdependence of different species is expressly taken into consideration in other provisions of UNCLOS, for example, in arts 61.3 and 61.4 (which relate to conservation of living resources and provide that measures taken to maintain or restore populations of harvested species must also take into account species associated with or dependent on harvested species).

Question 6

The CJEU held that, as the subject matter of the two provisions was different, it was unnecessary to take into account of the concept of ‘significant pollution’ referred to in art 220.5 of UNCLOS when applying art 220.6 (in particular when assessing the consequences of a violation of art 220.6).

Questions 5, 7 and 10

1.  ‘clear objective evidence’

The CJEU held that art 220(6) of UNCLOS  must be interpreted as requiring ‘clear objective evidence’, not only as to the commission of a violation, but also as to the consequences of that violation.

The Court accepted that the treaty was silent on this question, and so regard had to be had of the context. The Court observed that arts 220.3, 220.5 and 220.6 provided for a set of graduated measures that a coastal State may take against a vessel, agreeing with AG Wahl in this regard. It also observed that the requirement of ‘clear objective evidence’ only appeared in art 220.6. Regard was had to how art 220.6 provided for particularly drastic measures, and to how the objective of UNCLOS was to strike a fair balance between the interests of coastal States and flag States, which may conflict. The Court therefore decided that the expression ‘clear objective evidence’ covered not only the commission of a violation, but also evidence of the consequences of that violation. 

2. ‘causing a threat’ & factors to take into account in assessment of damage or threat of damage

The CJEU held that, in order to assess the consequences of a violation as defined in art 220.6 of UNCLOS, all the evidence to establish that damage has been caused or that there was a threat of damage to the resources and related interests of the coastal State and to evaluate the extent of the damage caused or threaten to those resources or related interests, should be taken into account.

The resources and related interests must be identified and the seriousness of the damage caused to one or more of those components or all of them must be assessed.

The specific nature of the resources or related interests concerned by the damage must also be taken into account. The sensitivity of the coastal State in relation to the harmful effects of discharge differed according to the nature of the resources or related interests concerned. Thus, danger to the health of the coastal population would have, in principle, more impact than purely economic damage.

Particular account should be taken of:

1. the cumulative nature of the damage on several or all of those resources and related interests and the difference in sensitivity of the coastal State with regard to damage to its various resources and related interests:
2. the foreseeable harmful consequences of discharge on those resources and related interests, not only on the basis of the available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharge concerned and the volume, direction, speed and the period of time over which the oil spill spreads (the CJEU largely agreeing with AG Wahl in this regard).

Question 9

The CJEU agreed with AG Wahl that the Baltic Sea is internationally recognised as being a special area characterised by geographical particularities and is a particularly sensitive ecosystem in need of special protection.

The Court went on to hold that the specific geographical and ecological characteristics and sensitivity of the Baltic Sea area have a direct impact on the definition and classification of the violation within the meaning of UNCLOS art 220.3, and accordingly on applicability of UNCLOS art 220.6. The Court had regard to the fact that Regulation 15B of Part C of Chapter 3 of Annex 1 to the MARPOL Convention 73/78 determines that a violation committed in a special area is more serious than where a discharge occurs outside special areas.

The Court also found that the specific geographical and ecological characteristics and sensitivity of the Baltic Sea area could be taken into account in assessing the extent of the damage that the violation has caused to the resources and related interests of the coastal State, although those particularities should not automatically influence the assessment (given that the object of art 220.6 of UNCLOS is to protect certain resources and interests of the coastal State, regardless of whether or not the sea adjacent to that State is a special area).

Question 8

The CJEU held that art 1(2) of Directive 2005/35, as amended by Directive 2009/123, must be interpreted as meaning it does not allow Member States to impose more stringent measures than those laid down in art 7(2) thereof, as Member States are limited by international law, by which coastal States are (only) authorised to take measures equivalent in scope to those laid down in art 220.6 of UNLCOS.