Update Volume 2019/2 A ship’s right of free passage through European Exclusive Economic Zones
In the recent European Court of Justice (ECJ) case C-15/17 (Bosphorus Queen Shipping Ltd Corp. v Rajavartiolaitos) the ECJ has, for the first time, clarified the circumstances in which a coastal State may, as a matter of EU law, assert jurisdiction outside of its territorial waters, but within its exclusive economic zone (EEZ) against a foreign vessel in order to protect the marine environment without unduly interfering with freedom of navigation.
The Bosphorus Queen is a dry cargo vessel registered in Panama which, according to the Finnish Border Protection Authorities “Rajavartiolaitos”, spilled oil into the sea whilst she was in transit through Finland’s EEZ on 11 July 2011. The spill occurred around 25 to 30 kilometers off the Finnish coastline. The oil spread over some 37 kilometers in a strip roughly 10 meters wide. No countermeasures were adopted in response to the oil spill. When the Bosphorus Queen returned from St. Petersburg, Russia, through Finland’s EEZ, the Rajavartiolaitos required the shipowner to provide financial security for the oil spill fine, and the vessel was arrested. The Finnish Courts later imposed a fine on the shipowner in the amount of the security provided.
The shipowner objected the penalty before the Courts and in particular objected the national Courts’ jurisdiction over incidents occurring in Finland’s EEZ, as well as the Finnish governments’ authority to interfere with the ship’s passage through its EEZ. After a first instance ruling, followed by an appeal, the ECJ was asked to provide guidance on whether Finland had jurisdiction to interfere with the ship’s right of free passage in the circumstances as set out. The ECJ ruled that a coastal state can interfere with the ship’s right of free passage where:
- The coastal state has clear objective evidence that a foreign vessel is the source of an incident violating MARPOL pollution regulations; and
- That violation caused or threatened to cause major damage to the coastline or related interests of the coastal state or to the resources of the coastal state. In this respect, the ECJ ruled that “resources” include a wide variety of elements and should be interpreted broadly.
The ruling is considered an extension of coastal states’ jurisdiction in their EEZ and it is expected that pursuant to the ruling, other EU nations will now start to use the judgement to assert rights of enforcement over incidents occurring within their EEZ.