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The M/V “Saiga” (Saint Vincent and the Grenadines v. Guinea)

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman
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Type
International Decisions
Information
American Journal of International Law , Volume 92 , Issue 2 , April 1998 , pp. 278 - 282
Copyright
Copyright © American Society of International Law 1998

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References

1 Most of the crew were of Ukrainian, and a few of Senegalese, nationality.

2 The agent for the applicant, a London solicitor, referred to the application as being made “on behalf of” Saint Vincent and the Grenadines. Given the specific written authorization from the Government to make the application in this case, there apparently was no need for the Tribunal to address any distinction between applications made “by” or “on behalf of” the flag state. With respect to this distinction and its implications for the bar, see Rules of the Tribunal, Art. 110 (http://www.un.org/Depts/los/rules_e.htm); 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, 211–15 (1996)Google Scholar. The agent for Guinea was a Hamburg attorney. The Minister of Justice of Guinea was present at the hearing.

3 On the grounds that evidence regarding incidents on vessels not connected with the incident before the Tribunal would not be admitted, one witness for the applicant was excluded and the President had occasion to caution counsel for the applicant while questioning another witness. Verbatim Record, Public Hearing (Nov. 27, 1997), Doc. ITLOS/PV.97/1, at 7, 25. (The timely assistance of Gritakumar E. Chitty, Registrar of the Tribunal, in making available copies of this and other documents for this report is gratefully acknowledged.)

4 The voting reveals no discernible pattern, regional or otherwise. The majority consisted of Judges Zhao (China), Caminos (Argentina), Marotta Rangel (Brazil), Yankov (Bulgaria), Kolodkin (Russia), Bamela Engo (Cameroon), Akl (Lebanon), Warioba (Tanzania), Laing (Belize), Treves (Italy), Marsit (Tunisia) and Eiriksson (Iceland), all of whom joined in the opinion of the Tribunal. Four dissenting opinions were filed respectively by President Mensah (Ghana); Vice President Wolfrum (Germany) and Judge Yamamoto (Japan); Judges Park (South Korea), Nelson (Grenada), Chandrasekhara Rao (India), Vukas (Croatia) and Ndiaye (Senegal); and Judge Anderson (UK) (http://www.un.org/Depts/los/judg_l_d.htm).

5 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 [hereinafter UN Convention].

6 Judgment, paras. 50, 51. Judge Anderson wrote:

No authority is cited, but the [words allegations of a sufficiently plausible character] were used by the International Court of Justice in the Ambatielos case (Reports 1953, at p. 18). The Court adopted that standard in the context of defining its own role vis à vis that of the Commission of Arbitration. In my opinion, the majority’s approach in this case is mistaken because, on the issues over which the Tribunal has jurisdiction, there exists no equivalent of the Commission of Arbitration. The Tribunal’s limited jurisdiction is exclusive and the normal standard of appreciation should apply.

Dissenting Opinion of Judge Anderson, para. 4.

7 In this context, Article 73(2) of the Convention, supra note 5, provides, “Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.”

8 Id., Article 226(l)(b) provides, “If the investigation [referred to in subparagraph (a)] indicates a violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment, release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security.” See also Arts. 220(7), 226(1) (c).

9 Judgment, paras. 24, 35, 36. In this regard, the Tribunal observed that “Guinea, in rejecting in its pleading the argument. . . that article 73 applies, does not challenge directly the applicability of article 73 but rather confines itself to the argument that a bond had not been posted or offered.” Id., para. 67.

10 Id., para. 56.

11 Id., paras. 57–59.

12 Id., paras. 64–69.

13 Id., paras. 61, 70. The Tribunal also rejected Guinea’s argument that its purpose was to prevent the Saiga from performing activities contrary to the UN Security Council resolution restricting the delivery of petroleum to Sierra Leone. SC Res. 1132 (Oct. 8, 1997); Judgment, para. 74.

14 Judgment, para. 72. President Mensah argued that this statement was in tension with the Tribunal’s earlier assertion that it was not resolving the question whether bunkering of fishing vessels falls within the regulatory competence of the coastal state in the exclusive economic zone. See Dissenting Opinion of President Mensah, paras. 19–22.

15 Judgment, para. 53. This is essentially a verbatim quotation from a paper presented at a workshop in November 1995, prior to the first elections to the Tribunal. See Tullio, Treves, The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea , 11 Int’l J. Marine & Coastal L. 179, 186 (1996)Google Scholar. But see David, Anderson, Investigation, Detention and Release of Foreign Vessels under the UN Convention on the Law of the Sea of 1982 and Other International Agreements , id. at 165, 168–69 Google Scholar.

16 Judgment, paras. 53, 73. See Rules of the Tribunal, Art. 113, para. 2.

17 Judgment, paras. 77–78. A representative of the company operating the Saiga testified that he traveled to Conakry after the arrest but had no success in seeking an official resolution of the matter. Verbatim Record, note 3 supra, at 24, 27.

18 Judgment, paras. 82, 84.

19 The travaux préparatoires are cited in support of this argument. See Dissenting Opinion of Judges Park, Nelson, Chandrasekhara Rao, Vukas and Ndiaye, paras. 23–25. Interestingly, this dissent appears to treat as travaux préparatoires the narrative in the University of Virginia’s Commentary on the UN Convention, which was prepared well after the completion of the Convention. Also, it is perhaps ironic that, unless read restrictively in context, the ambiguous reference to the territorial sea in the passage quoted from the Commentary can be misleading. See id., para. 24.

20 Unless both parties to the dispute have accepted the jurisdiction of the Tribunal or another forum, parties to the Convention generally are subject only to arbitration. UN Convention, supra note 5, Arts. 282, 286, 287. But see Arts. 187, 188, 290(5), 292(1).

21 See Dissenting Opinion of Vice President Wolfrum and Judge Yamamoto, paras. 13–19. For a case in which provisional measures ordering release were indicated when detention itself was the unlawful conduct alleged on the merits, see United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Provisional Measures, 1979 ICJ REP. 7, 20–21 (Order of Dec. 15).

22 UN Convention, supra note 5, Art. 290(5).

23 Docs. ITLOS/Press 11 (Jan. 13, 1998); ITLOS/Press 13 (Feb. 28, 1998); ITLOS/Press 14 (Mar. 6, 1998); ITLOS/Press 15 (Mar. 11, 1998).