* This text was reproduced and reformatted from the text available at the International Tribunal for the Law of the Sea website (visited November 17, 2014), https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.19/judgment/C19-Judgment_14.04.14_corr.pdf.

1 M/V “Virginia G” (Pan. v. Guinea-Bissau), Case No. 19, Judgment of Apr. 14, 2014, http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.19/judgment/C19-Judgment_14.04.14_corr.pdf.

2 Id. ¶¶ 85–92.

3 Id. ¶¶ 55–76.

4 The owner lodged actions on the merits against the decisions of the CIFM and that of the Secretary of State. The former was still pending at the time of the Judgment; the latter did not proceed, for reasons on which the Parties disagreed. Id. ¶¶ 79–81.

5 Id. ¶ 82.

6 United Nations Convention on the Law of the Sea, art. 91(1), Dec. 10, 1982, 1833 U.N.T.S. 397. Article 91(1) states: “Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.”

7 Virginia G, supra note 1, ¶ 102. Guinea-Bissau asserted: “[N]either the ship owner nor the manning of the ship are of Panamanian origin, which are essential conditions to have a genuine link.” Id.

8 Id. ¶¶ 110–118. The Tribunal referred to its ruling in M/V “Saiga” (No. 2) (Saint-Vincent and the Grenadines v. Guinea), Case No. 2, Order of Jan. 20, 1998, 2 ITLOS Rep. 1, ¶¶ 63, 82–83. One may regret that the Tribunal, by equating the duty to establish a genuine link with the duty to establish jurisdiction and control once the ship is registered, missed the opportunity to interpret Article 91 in a way that reminds states that they must establish a link with the interests in the ship at the time of registration, and subsequently a link which allows them to exercise effective jurisdiction and control over the ship. This is different from allowing third states to refuse to recognize the ship’s nationality.

9 Virginia G, supra note 1, ¶ 160.

10 Id. ¶¶ 119, 156–157. Among the contrary views were the Joint Separate Opinion of Judges Cot and Kelly, the Dissenting Opinion of Judge Jesus, and the Joint Dissenting Opinion of six Judges. In Article 14(3) of its Draft Articles on Diplomatic Protection, the ILC considers in that “local remedies shall be exhausted where an international claim . . . is brought preponderantly on the basis of an injury to a national . . . ” The Tribunal does not suggest that all injuries to a ship are direct injuries to the flag state.

11 Saiga, supra note 8, ¶ 138.

12 Virginia G, supra note 1, ¶¶ 207, 221–223. “The coastal State, however, does not have such competence with regard to other bunkering activities, unless otherwise determined in accordance with the Convention.” Id. ¶ 223. The Tribunal considered that the management measures of the coastal state can go beyond conservation in the strict sense but regulated activities must have a “direct connection to fishing.” Id. ¶¶ 212, 215.

13 Id. ¶¶ 265, 362. In his Separate Opinion, Judge Lucky disagreed with the assessment of evidence by the Tribunal regarding the authorization.

14 Id. ¶¶ 253, 257. See The “Tomimaru” Case (Japan v. Russ.), Case No. 15, Judgment of Aug. 6, 2007, 9 ITLOS Rep. 65, ¶ 72.

15 This finding attracted the negative vote of nine judges. The Joint Dissenting Opinion found that “the Tribunal, instead of exercising its powers of judicial review, appears to have functioned as an appellate authority substituting its judgment for that of the local authority.” Virginia G, supra note 1 (joint dissenting opinion, ¶ 55).

16 Id. ¶ 270. The reasonableness of an enforcement measure is assessed in light of the particular circumstances of the case, including the gravity of the violation. Id. Judge Paik in his Separate Opinion devoted lengthy analyses to the concept of necessity and the standard of review by the Tribunal. Virginia G, supra note 1 (separate opinion of Judge Paik, ¶¶ 2–38).

17 This concerned additional losses and damages suffered by the owners or operators of the Virginia G and other entities with an interest in the vessel, including loss of reputation of the vessel and the owner.

18 Virginia, G, supra note 1, ¶¶ 430, 435. See Report of the International Law Commission on the Work of its 53rd Session , Y.B. Int’l L. Comm’n 92–93, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) (2007)Google Scholar.

19 Virginia, G, supra note 1, ¶¶ 295, 438 Google Scholar. Some Judges, including Judges Lucky, Akl, Cot, and Kelly, nevertheless regretted the lack of clarity of Guinea-Bissauan law in these matters. The passports of most crew members were taken in August 2009 and returned in January 2010. Id. ¶ 84. The Tribunal noted that under Guinea-Bissauan law, the release of crew members was available provided sufficient security was paid. The Tribunal agreed that this was not imprisonment prohibited by Article 73(3). Guinea-Bissau also claimed that they would have been free to leave anyway but the tickets were not paid by the shipowner. Id. ¶¶ 307, 309–310.

20 Tomimaru, supra note 14, ¶ 76. See Vincent, Cogliati-Bantz, Hoshinmaru (Japan v Russian Federation) and Tomimaru (Japan v Russian Federation) Prompt Release Judgments , 58 Int’l & Comp. L. Q. 241, 249, 256 (2009)Google Scholar.

21 The “Camouco” Case (Pan. v. France), Case No. 5, Judgment of Feb.7, 2000, 4 ITLOS Rep. 1, ¶ 59.