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The M/V“Saiga” (No.2) (Saint Vincent and the Grenadines v. Guinea) Judgment (ITLOS Case No. 2)

Published online by Cambridge University Press:  27 February 2017

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International Decisions
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American Journal of International Law , Volume 94 , Issue 1 , January 2000 , pp. 140 - 150
Copyright
Copyright © American Society of International Law 2000

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References

1 The Giuseppe Prima and the Kritiviere flying the flag of Senegal, and the Eleni S was flying the flag of Greece. Documents relating to the M/V “Saiga” cases are available through the Oceans and Law of the Sea Web site at <http://www.un.org/Depts/los> (and are currently at <http://www.un.org/Depts/los/ITLOS/Saiga_cases.htm>). An index of online documents on procedures and cases is available at <http://www.un.org/Depts/los/ITLOS>.

2 The two persons injured during the arrest of the Saiga were allowed to leave for medical treatment in Dakar on November 1, 1997. By December 14, 1997, 13 crew members had been allowed to leave Guinea. The master and six crew members remained in Conakry until the ship was released on February 28, 1998.

3 See infra notes 6–9 and accompanying text.

4 United Nations Convention on the Law of the Sea, opened for signature Dec. 10,1982 [hereinafter Convention], reprinted in United Nations, The Law of the Sea, UN Sales No. E.83.V.5 (1983).

5 The facts are summarized in paras. 31–39 of the Judgment. Information regarding the ship's documentation is at paras. 57–58, and findings regarding the boarding and arrest are at paras. 157–58.

6 In Article 292 proceedings the Tribunal deals “only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew.” Convention, supra note 4, Art. 292 (3).

7 See case report at 92 AJIL 278 (1998).

8 The request for provisional measures thus became part of a case before the Tribunal on the merits and was addressed under Article 290(1).

9 Provisional Measures Order, para. 52, <http://www.un.org/Depts/los/ITLOS/Saiga2-Order.htm>. In maintaining its request for provisional measures, St. Vincent cited fear of similar arrests in the near future. Doc. ITLOS/Press 14 (Mar. 6, 1998); see argument of the Agent of St. Vincent, Verbatim Record, Public Hearing (Feb. 23, 1998), Doc. ITLOS/PV.98/1, at 31–34.

10 See infra notes 15 and 16.

11 The majority consisted of President Mensah, Vice-President Wolfrum, and Judges Zhao, Caminos, Marotta Rangel, Yankov, Kolodkin, Park, Engo, Nelson, Chandrasekhara Rao, Akl, Anderson, Vukas, Laing, Treves, Marsit, and Eiriksson. Judges Warioba and Ndiaye dissented, principally on the grounds that the ship was not validly registered in St. Vincent at the time of the arrest. <http://www.un.org/Depts/los/ITLOS/Judg_E.htm>.

12 The dispositifis contained in para. 183 of the Judgment.

13 Judges Vukas, Warioba, and Ndiaye dissented.

14 Judges Caminos, Yankov, Akl, Anderson, Vukas, Treves, and Eiriksson dissented in a joint declaration.

15 The 1998 Agreement specified that “the written and oral proceedings before [the Tribunal] shall comprise a single phase dealing with all aspects of the merits (including damages and costs) and the objection as to jurisdiction raised in the Government of Guinea's Statement of Response dated 30 January 1998.”

16 St. Vincent contended that the 1998 Agreement, in particular the provision cited in the previous note, precluded objections to the admissibility of the application. The Tribunal concluded that “the object and purpose of the 1998 Agreement was to transfer to the Tribunal the same dispute that would have been the subject of the proceedings before the arbitral tribunal,” and that the agreement did not limit Guinea's right to raise objections to admissibility in accordance with the Rules of the Tribunal. Judgment, para. 51. Judge Anderson expressed doubts about this finding “in regard to the objection to the specific issue of locus standi” because the “conclusion of the [1998] Agreement and its terms are both fully consistent with the unequivocal acceptance of St. Vincent's standing as the flag State.” Sep. Op. Anderson, J., at 4. These remarks will undoubtedly be taken as a warning by lawyers drafting a compromis, whether or not Judge Anderson intended to imply that specific language should be included to protect objections to standing where the issue was not previously raised.

St. Vincent also argued that Guinea's objections were raised after the expiry of the time limit specified in Article 97(1) of the Rules of the Tribunal. The Tribunal concluded that this time limit does not apply to a case where admissibility is addressed together with, rather than prior to, the merits. Judgment, para. 53. Judge Nelson cited as precedent the Rights of Minorities in Upper Silesia (Germ. v. Pol.), Judgment, 1928 PCIJ (ser. A) No. 15, at 22 (Apr. 26). Sep. Op. Nelson, J., at 2. See Georges Abi-Saab, Les Exceptions Preliminaires dans la Procedure de la Cour Internationale 218 (1967).

17 judgment, para. 67. In their separate opinions, several judges in the majority, including Mensah, P., Wolfrum, V.P., and Nelson and Rao, JJ., expressed substantial disagreement with the analysis in this paragraph.

18 Judgment, para. 69. St. Vincent “always acted as if it was the flag State”; in “that capacity” it “invoked the jurisdiction” of the Tribunal in the prompt-release proceedings and in the later proceedings for the prescription of provisional measures; Guinea “did not raise the question of the ship's lack of registration at the time when it seized the ship's papers following the arrest”; and St. Vincent was identified as the flag state in “the decisions of the judicial authorities of Guinea.” Sep. Op. Rao.J., para. 12. The law of estoppel and acquiescence was reviewed in Sep. Op. Wolfrum, V.P., paras. 34–43. Judge Warioba asserted that St. Vincent misled Guinea and the Tribunal by failing to deliver as promised a valid certificate of registration during the vessel-release proceedings. Diss. Op. Warioba.J., paras. 51, 58.

19 See Diss. Op. Warioba, J., paras. 22–29. Judge Ndiaye thought the Tribunal should have asked Malta to investigate the matter. Diss. Op. Ndiaye, J., para. 81.

20 Judgment, paras. 60, 70.

21 Id, para. 73 (d). President Mensah expressed the view that the Saiga was not of Vincentian nationality at the time. However, he considered that refusing locus standi to St. Vincent on that ground would deprive the persons involved of redress. Furthermore, dealing with the merits would not prejudice any rights of Guinea since nothing suggested that it would have acted differently with a ship of another nationality. Sep. Op. Mensah, P., at 5. Judge Ndiaye observed that humanitarian considerations are not the same thing as rules of law. Diss. Op. Ndiaye, J., para. 90. Judge Warioba stated that “it is dangerous for a tribunal to brush aside important issues of procedure simply because it feels it has to deal with the merits.” Diss. Op. Warioba.J., para. 52.

22 Id., paras. 75–76; Verbatim Record, Public Hearing (Mar. 11, 1999), Doc. ITLOS/PV.99/8, at 14.

23 Among these facts were that the owner of the Saiga was represented in St. Vincent by a company formed and established there, that the ship was subject to the supervision of Vincentian authorities to secure compliance with International Maritime Organization safety and pollution conventions, that the ship's seaworthiness was subject to regular surveys conducted at least annually by reputable classification societies authorized for that purpose by St. Vincent, that under St. Vincent's laws preference is given to Vincentian nationals in the manning of ships flying its flag, and that St. Vincent made vigorous efforts to protect the Saiga before and throughout the present dispute. Judgment, para. 78.

24 Convention on the High Seas, Apr. 29,1958, Art. 5(1), 13 UST 2312, 450 UNTS 82.

25 [1956] 2 Y.B. Int'l L. Comm'n 259 (Art. 29) (emphasis added). The proposal was obviously directed at open registries. For purposes of recognition of the nationality of a vessel, Special Rapporteur François had proposed that more than one-half of the vessel be owned by nationals of the flag state or others established there. He also proposed that the captain of the ship possess the nationality of the flag state. Second Report on the High Seas, [1951] 2 Y.B. Int'l L. Comm'n 76, UN Doc. A/CN.4/42.

26 Judgment, para. 80. The U.S delegation stated at the 1958 Conference, “The only principle which had been advanced as the basis for the concept of non-recognition was that of ‘genuine link’,… a vague concept.” 4 Off. Rec. Geneva Conference on the Law of the Sea (Second Committee), at 64 (1958). For one writer, “The mention of the genuine link is an out-of-place survival from a text which once included the non-recognition clause, and therefore it should have been rejected along with that clause.” Boleslaw A. Boczek, Flags of Convenience 291 (1962).

27 Judgment, para. 82.

28 Id., para. 83. Judge Anderson did not read this paragraph “as going so far as to say that the requirement of a ‘genuine link’, which contains an element of good faith in the word ‘genuine’, has no relevance at all to the grant of nationality.” Sep. Op. Anderson, J., at 1.

29 Judgment, para. 87.

30 [1980] II-2 Y.B. Int'l L. Comm'n 32.

31 See, e.g., Phosphates in Morocco (Italy v. Fr.), Judgment, 1936 PCIJ (ser. A/B) No. 74, at 28 (June 14).

32 Judgment, paras. 97-98. Two judges expressed doubts on this point but agreed that exhaustion of local remedies was not required because there was no jurisdictional connection with Guinea. Sep. Op. Wolfrum, V.P., paras. 45–54; Sep. Op. Rao,J., paras. 13-16. It is not clear whether the Tribunal's analysis on this point influenced its unarticulated assumption that, for purposes of standing, St. Vincent had to be deemed the flag state when the detention occurred. See text preceding note 17 supra.

33 Judgment, para. 100 (referring to the analysis of customsjurisdiction in paras. 110–36). The Tribunal may have been persuaded by St. Vincent's argument that aliens who do not voluntarily bring themselves within the jurisdiction of a state cannot be asked to exhaust local remedies (noting that a similar point was made by counsel for Israel in the Aerial Incident case). Verbatim Record, Public Hearing (Mar. 8, 1999), Doc. ITLOS/PV.99/2, at 4 (citing Case Concerning the Aerial Incident of July 27,1955 (Isr. v. Bulg.), Preliminary Objections, 1959ICJ Rep. 127). See reference to “prior voluntary link” in Sep. Op. Wolfrum, V.P., para. 54. It also has been argued that property brought involuntarily into a state is not subject to expropriation. See Hersch Lauterpacht, Angary and Requisition of Neutral Property, 1950 Brtt. Y.B. Int'l L. 455.

34 Guinea had also originally opposed diplomatic protection of the foreign ship owner. Subsequendy, during the oral pleadings, Guinea accepted the view mat the protection of the ship owner was related to protection of the ship itself. Judgment, para. 103; Verbatim Record, Public Hearing (Mar. 11,1999), Doc. LTLOS/PV.99/8, at 16.

35 See Panavezys-Saldutiskis Railway (Est. v. Lith.), Judgment, 1939 PCIJ (ser. A/B) No. 76, at 16 (Feb. 28).

36 See Ross v. McIntyre, 140 U.S. 472 (1891); Advisory Opinion, Reparation for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 180, 202 (Apr. 11) (Hackworth, J., dissenting). Gidel considered a ship to be a small organized community in need of an identified protector, that is, the flag state. Foreign seamen are put under the jurisdiction of the flag state and can expect its protection in return. Gilbert Gidel, Le Droit International Public de la Mer 73 (1932).

37 Verbatim Record, Public Hearing (Mar. 11, 1999), Doc. ITLOS/PV.99/8, at 16.

38 See Convention, supra note 4, Arts. 106, 110(3), 111(8).

39 Judgment, para. 105.

40 Id., para. 106.

41 Id., para. 107. This position seems to be consistent with the opinion of the ICJ regarding the right of an international organization to protect its agents; the Court recognized the possibility of concurrent claims by the state of nationality of the agent but noted that the problem could be solved on the basis of “goodwill and common sense.” Advisory Opinion, Reparation for Injuries Suffered in the Service of the United Nations, supra note 36, at 184, 186. In the context of a corporation, however, the Court generally limited standing to the state of nationality of the corporation, and rejected the idea of claims by the state of nationality of the shareholders which, “by opening the door to competing diplomatic claims, could create an atmosphere of confusion.” Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), Second Phase, Judgment, 1970 ICJ Rep. 3, paras. 70–71 (Feb. 5).

42 St. Vincent also argued that the Saiga was arrested by Guinean officials only to satisfy their own needs. Doc. ITLOS/PV.99/7, at 12.

43 Convention, supra note 4, Art. 33.

44 Convention, supra note 4, Art. 60(2). The same rule applies to the continental shelf. Id., Art. 80.

45 Judgment, para. 127.Judge Nelson observed that the Conference had, at an early stage, failed to incorporate into its negotiating texts a more broadly worded proposal by 18 African states to include coastal state jurisdiction in the EEZ for the purpose of control and regulation of customs and fiscal matters related to economic activities in the zone. Sep. Op. Nelson, J., at 6–7. Bernard Oxman recalls that following his conversations with representatives of Nigeria and other supporters of that proposal, the U.S. delegation, with their encouragement, informally suggested the more focused customs provision regarding installations, which became Article 60 (2) cited by the Tribunal.

46 Judgment, paras. 128–35.

47 Id., para. 136. In other words, “Guinea violated the freedom of navigation of Saint Vincent.” Sep. Op. Laing, J., para. 53.

48 Judgment, paras. 137–38. Judge Vukas concludes that, at present, bunkering in the EEZ is a use related to navigation open to all states. Sep. Op. Vukas, J., at 7. Taking a negative view of bunkering as “a means of evading customs duties of coastal States,” Judge Zhao would require coastal state agreement for bunkering in the EEZ, especially in the case of fishing vessels. Sep. Op. Zhao, J., at 2. Judge Anderson observed, “These questions are far from being straightforward. Today, bunkering is conducted under all manner of different circumstances and may involve distinct types of recipient vessels, including passenger vessels, warships, cargo ships and fishing vessels.” Sep. Op. Anderson, J., at 5. In paragraphs 57 and 58 of its vessel-release Judgment of Dec. 4, 1997, the Tribunal briefly reviewed the arguments that could be advanced on eitiier side of the issue.

49 Article 111(8) provides, “Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.”

50 “A suspicion is something less than the ‘good reason to believe’ required by paragraph 1 of article 111” of the Convention. Sep. Op. Anderson, J., at 5.

51 Judgment, para. 147. Article 111(4) of the Convention provides that “pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.”

52 Judgment, para. 147.

53 Id., para. 148. There was “evidence which tended to show that, far from having received any intimation of the approach of the patrol vessels, the Saiga was taken completely by surprise by their arrival.” Sep. Op. Anderson, J., at 6.

54 Judgment, para. 149.

55 Article 293(1) of the Convention provides, “A court or tribunal havingjurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”

56 Judgment, para. 155.

57 Id., paras. 157–58.

58 See Doc. ITLOS/PV.99/18, at 31. Included in this claim was some $3 million in proceeds allegedly received by Guinean authorities from the sale of the cargo of gas oil removed from the ship. See Doc. ITLOS/PV.99/1, at 9.

59 Judgment, para. 175.

60 Id., para. 170 (citing Chorzów Factory (Germ. v. Pol.), Merits, Judgment, 1928 PCIJ (ser. A) No. 17, at 47 (Sept. 13)).

61 An Annex indicates that more than $3,000 was awarded for each person detained, except that about half that amount was awarded for the two injured individuals.

62 Judgment, para. 175. The Tribunal seta general interest rate of 6%, with a higher rater of 8% payable from the date of the arrest “to include loss of profit” for the value of the gas oil, and a lower rate of 3% for damages for detention and personal injury (other than medical expenses) payable from three months after the date of the Judgment. Id., para. 173.

63 Id., para. 180.

64 Id., para. 177.

65 Id., para. 176.

66 Id., para. 162.

67 Id., para. 165. Since Guinea was, in any event, held liable for damages attributable to the detention of the ship and crew until their release, it is not clear that this conclusion constituted anything more than a moral victory for Guinea.

68 Convention, supra note 4, Ann. VI, Art. 34.

69 Judgment, para. 4.

70 Id., para. 182.

71 In a decision likely to please those who prefer that discursive dictum be kept under strict control, the Tribunal declined the invitation of its vice president to elucidate its legal reasoning more elaborately. See Sep. Op. Wolfrum, V.P. In particular, the second paragraph of his separate opinion, deftly deploying a modish totem, states, “As a matter of transparency of the Judgment, the system on the appreciation of evidence should be clearly identified and fully reasoned.” Others might be disappointed that little was revealed on fact-sensitive issues such as the calculation of damages attributed to particular losses or injuries.

72 See Convention, supra note 4, Art. 98; see also Aits. 18(2), 58(2). It also maybe noted that the Convention prohibits imprisonment for fisheries and pollution violations in the EEZ and expressly excludes corporal punishment. Id., Arts. 73(3), 230.

73 The dissenting opinion of Judge Ndiaye, but not the Judgment, cites the Nottebohm case, in which the Court did not allow a claim for injury to a natural person in the absence of a genuine connection between the individual and the complaining state, and the Barcelona Traction case, in which the Court addressed the question of genuine connection in the context of a claim for injury to a corporation, and appeared to find what might be viewed as essentially formal links with the state of incorporation to be sufficient to preclude standing by the state of nationality of the injured corporation's shareholders. Nottebohm (Liech. v. Guat.) Judgment, 1955 ICJ Rep. 4 (Apr. 6); Case Concerning the Barcelona Traction, Light and Power Company, Limited, supra note 41, paras. 70–71.

74 See supra note 27.

75 See supra note 29.

76 Several judges criticized St. Vincent for having too lax a system of provisional registration—a laxness that, among other things, led to the lapse of registration in the instant case. SeeSep. Op. Mensah, P., at 5–6; Sep. Op. Wolfrum, V.P., para. 44; Sep. Op. Anderson, J., at 4.

77 On the fisheries issues see Judgment, para. 85.

78 Resolution of that issue involves, among other things, consideration both of the question of good faith raised by Judge Anderson, supra note 28, and of the law of countermeasures.

79 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. A/CONF.164/37, Art. 8(4) (1995).

80 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended by Regulation I/7 (1995), IMO Pub. Sales No. IMO-938E (1996); Seafarer's Training, Certification and Watchkeeping Code, 1995, sec. A–I/7, id.

81 The M/V “Saiga” [No. 1], ITLOS Case. No. 1, para. 59, <http://www.un.org/Depts/los/ITLOS/Judgment-Saiga.htm>

82 Convention, supra note 4, Arts. 73(2), 226(1) (b).

83 Id., Arts. 17, 38, 52, 53, 58, 87, 90, 92, 94, 211(2), 217.

84 The Convention expressly requires prompt release on bond of ships arrested for pollution or fisheries violations, a duty enforceable before the Tribunal “without delay” in Article 292 release proceedings. See supra note 82.

85 Judge Wolfram seems to think there are, but in this respect he dissented from some of the majority's reasoning. See Sep. Op. Wolfrum, V.P., paras. 45–54.

86 Although the issue was not addressed, local remedies had not been exhausted at the time of the Saiga vessel release Judgment. The Tribunal has since determined that “it is not logical to read the requirement of exhaustion of local remedies or any other analogous rule into article 292.” The “CAMOUCO” Case (Panama v. France), ITLOS Case No. 5, para. 57 (Prompt Release Judgment of Feb. 7, 2000). The case will be reported in a subsequent issue.

87 See Bernard H. Oxman, Observations on Vessel Release Under the United Nations Convention on the Law of the Sea, 11 Int'l J. Marine & Coastal L. 201, 207–11 (1996).