The Swedish Coast Guard imposed a water pollution charge of SEK 439,000 under the Act on Prevention of Pollution from Ships (1980:424) (the Act) on Capri Marine Ltd (Capri) for a discharge of oil from the ship Alambra on 3 September 2000 east of Gotland in the Swedish exclusive economic zone (EEZ).

Capri appealed the Coast Guard's decision to the Stockholm District Court, and denied that there had been any oil spills from its vessel. Furthermore, Capri claimed that there was no Swedish jurisdiction, and that the Coast Guard's decision would therefore be set aside. The water pollution charge had been imposed on Capri after the ship had left the Swedish EEZ, and Swedish law did not contain any provision that gave Swedish authorities jurisdiction in such a case. Instead, the issue is regulated by UNCLOS, art 220.6 of which sets out the conditions under which a coastal State may initiate legal proceedings against a ship in connection with discharges in its EEZ. The conditions of art 220.6 were not met in this case.

The Public Prosecutor stated the following as the basis for Swedish jurisdiction. Cases concerning water pollution charges are administered and decided by the Coast Guard. Chapter 8 of the Act provides scope for the Coast Guard to take coercive measures in certain circumstances. Article 230.1 of UNCLOS provides that only monetary penalties may be imposed for the violation of national regulations by foreign vessels outside the territorial sea. The water pollution charge is a purely monetary sanction, and the Coast Guard was therefore free to impose the charge in this case.

The District Court dismissed Capri's objection of inadmissibility. Capri appealed to the Svea Court of Appeal. The Court of Appeal dismissed the appeal. Capri then appealed to the Supreme Court.

Held: Appeal dismissed.

The possibility of levying a water pollution fee for oil spills within Sweden's territorial waters and a certain area outside this was introduced in 1984. The provisions were included in the Act. A fee may only be prescribed if the discharge is not insignificant. The fee is imposed on the ship's shipowner or owner, and applies to both Swedish and foreign vessels. The liability imposed is strict. The design of the fee took into account the international agreements, eg MARPOL 73/78, to which Sweden has acceded (see Bill 1982/83:87 p 14).

Sweden established an EEZ through the Economic Zone Act (1992:1140), which entered into force on 1 January 1993. The possibility of establishing an EEZ rests with UNCLOS. The EEZ is not included in Sweden's maritime territory, as stated in s 1 of the Economic Zone Act: see art 55 of UNCLOS. The EEZ is also not to be equated with the high seas. The purpose of an EEZ is, among other things, to extend the jurisdiction of a State over the protection of the marine environment. According to art 56 of UNCLOS, the coastal State has both the right and the obligation to take measures to protect the marine environment in the economic zone. With reference to this, the possibilities of charging a water pollution fee in the EEZ were extended. As a basis for the provisions, reference was made to art 220 of UNCLOS (Bill 1992/93:54 pp 59 ff).

UNCLOS was ratified in 1996 following a proposal in Bill 1995/96:140. In connection with this, certain minor amendments were made to the Act in order to bring it into line with the requirements of the Convention. However, the provisions on interventions against foreign vessels in the EEZ remained largely unchanged. Subsequently, a review of these provisions was also made. The legislative amendments made as a result of this entered into force on 1 February 2002 (see Bill 2000/01:139).

The possibilities of prosecuting a crime committed on a foreign ship operating in the EEZ are limited by criminal law. The Act does not contain any explicit rules of jurisdiction regarding the collection of a water pollution fee. It is clear, however, that the restrictions with regard to criminal law intervention were not intended to be applied to the administratively levied water pollution fee. When these restrictions on jurisdiction were introduced, it was explicitly stated that these did not mean that Sweden would be prevented from intervening by means other than purely criminal law measures. The starting point in the legislative work has thus been that the fee provisions in the Act can also be fully applied to discharges from foreign vessels passing through the EEZ.

It is also clear that the provisions on intervention for inspection and securing of evidence in the wording of the Act are primarily intended only to regulate the conditions under which coercive measures may be taken against vessels in the EEZ. The fact that the fee is directed at the shipowner and not at the person responsible for the discharge also suggests that it is irrelevant for the collection of the fee whether intervention took place before the ship left the Swedish EEZ. These provisions thus have no bearing on the jurisdiction as such.

This means that any such restriction in Swedish jurisdiction as Capri has claimed is not expressed in the Act. However, this does not exclude that restrictions on jurisdiction may still apply as a result of conditions of international law.

The provisions of the Act are based on international law. Sweden is a party to UNCLOS, whose provisions have been transposed into Swedish law through transformation. The regulation in UNCLOS has in significant respects developed into customary law under international law and thus applies in these respects generally, even between non-treaty parties.

According to the dualism principle, as Sweden applies it, it is true that, as a general rule, international law obligations may not be applied directly by Swedish legal authorities if they are not transposed into Swedish law. If a discrepancy arises between Swedish law and a treaty acceded to by Sweden, the Swedish rule is considered to take precedence. It follows from general principles, however, that Swedish law must be interpreted in light of Sweden's obligations under international law. If transposition has taken place, it must be presumed that the Swedish legislation is in accordance with the international commitment. If there is room for interpretation, the starting point must therefore be that the Swedish rule is in accordance with the meaning of the international commitment.

The rules of the Convention concerning the jurisdiction of the coastal State in the EEZ are among the most complex and discussed. In the current case, the rules are based on a balance and a compromise between the flag State's right to innocent passage and the coastal State's right to maintain environmental protection in the economic zone. In these respects, the Convention provides a relatively significant scope for different interpretations, and has also been interpreted differently in different States.

Provisions on jurisdiction in relation to the protection and conservation of the marine environment within the EEZ are contained in art 56 and in Pt XII (arts 192-237) of the Convention. The provisions of arts 211, 217, 218, 220 and 228 are of particular importance regarding the intervention and prosecution of oil spills. The existence of a right to ban oil spills in the EEZ may be considered to follow from arts 56 and 211.5 of UNCLOS, as well as the provisions on oil spills in MARPOL 73/78. However, it does not follow from the fact that legislative jurisdiction exists that the jurisdiction has the same scope. In order to examine this issue, other relevant provisions of the Convention should also be taken into account.

In principle, it is the responsibility of the flag State to initiate an investigation in accordance with art 217.4 and, where appropriate, to institute legal proceedings in respect of infringements committed by its vessels, regardless of where the infringement took place. Rules which allow coastal States to intervene are, as mentioned above, in art 220.

Article 220 entitles the authorities of the coastal State, among other things, to undertake, under certain conditions, physical inspection of foreign vessels and to initiate legal proceedings, including detention of the vessel, in accordance with the laws of the State. The requirements are different depending on whether the measure is taken when a ship is in port, in the territorial sea, or in the EEZ. Intervention in the EEZ requires in principle that the discharge has caused, or could have caused, significant environmental damage (arts 220.5 and 220.6). The provisions must be seen in the light of the fundamental right to freedom of navigation. The concept of 'initiating legal proceedings' is admittedly not entirely clear, but in this context it can be assumed that it refers primarily to the right to initiate proceedings within the EEZ which include coercive measures against the ship. The provisions thus give coastal States the right to take coercive measures, despite the restrictions that generally apply to interventions against ships from other countries navigating in a country's territorial sea or EEZ. The provisions can thus not be assumed to entail an exhaustive regulation of jurisdiction; they are obviously aimed at the right to take measures for the investigation and securing of evidence. Nor can they, as Capri claims, be understood as meaning that a coastal State's jurisdiction over infringements in its EEZ would depend on such coercive measures being taken. It is in the nature of things that the conditions for such measures are often lacking, eg due to the fact that a discharge is not detected until the vessel has left the EEZ.

Nor can the text of UNCLOS be interpreted as meaning that, because the flag State's jurisdiction under art 228 is given priority under certain conditions, the coastal State is precluded from prosecuting an infringement in its EEZ after the ship has left the zone, when there are practical reasons for doing so. On the contrary, the regulation in the Convention seems to presuppose that parallel investigations into a suspected violation can take place, and that the coastal State can intervene with sanctions for a fairly long time after a violation. The fact that a decision may be difficult to enforce unless enforcement has been secured by any coercive measure before the vessel has left the area under the jurisdiction of the coastal State under art 220 does not affect this assessment.

It follows from the above that it is not contrary to international law to apply the fee provisions in the Act to discharges from foreign vessels in the EEZ, even if no intervention within the zone took place. Thus, Swedish jurisdiction is not lacking for the imposition of a water pollution charge. The appeal must therefore be dismissed.