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The M/V Saiga: the First Case in the International Tribunal for the Law of the Sea

  • Malcolm D. Evans and Vaughan Lowe

Extract

The International Tribunal for the Law of the Sea (ITLOS—“the Tribunal”) heard its first case at the end of 1997.1 A remarkable split judgment, which saw both the President and Vice-President of the Tribunal joining the minority judges in recording persuasive dissenting judgments, struck a harsh and discordant note, regrettable in what should have been an auspicious debut.

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1. The judgment and other documents emanating from the ITLOS may be found on the UN Law of the Sea website: http://www.un.org/Depts/los, and at 110 I.L.R. 736 and (1998) 37 I.L.M 360.

2. For accounts of the LOSC dispute settlement procedure see e.g.Adede, A. O., The System for the Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987); Boyle, A. E., “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction” (1997) 46 I.C.L.Q. 37; Charney, J. A. “The Implications of Expanding International Dispute Mechanisms: The 1982 Convention on the Law of the Sea” (1996) 90 A J.I.L. 69; Nordquist, Myron H., Shabtai, Rosenne and Sohn, Louis B. (for the Center for Oceans Law and Policy, University of Virginia), United Nations Convention on the Law of the Sea 1982: A Commentary, VoL.V (1989).

3. Para.70 of the ITLOS (majority) judgment.

4. Judgment, para.24.

5. Cf. LOSC Art.111. In fact, as the judgment noted, the pursuit was not “hot”, having commenced on the day after the bunkering. The non-compliance with the requirements for hot pursuit was not regarded as material. The Tribunal observed that it “is not called upon to decide whether the arrest of the M/V Saiga was legitimate. It is called upon to determine whether the detention consequent to the arrest is in violation of a provision of the Convention ‘for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security’.”: judgment, para.62.

6. The ITLOS Rules, Art.112, give prompt release cases priority over other cases, though there were none before the ITLOS at this time. The ITLOS President is required to fix the earliest possible date for the hearing, not later than 10 days from receipt of application.

7. Art.112, ibid, gives each party one day to present evidence and arguments in prompt release cases.

8. ITLOS had adopted a Resolution on the Internal Judicial Practice of the Tribunal on 31 Oct. 1997. It appears on the UN Law of the Sea website, supra n.1.

9. Initially, St Vincent also argued that the case was admissible because it fell within Arts.220 and 226 of the Convention, but those arguments were subsequently dropped.

10. Para.59.

11. See the dissenting opinions of President Mensah (para.5). Judge Anderson (paras.3–5), and Judges Wolfrum and Yamamoto (paras.5–9). And cf. the dissenting opinion of Judge Park et al., paras.8–9.

12. Dissenting opinion of Judge Anderson, para.5.

13. See the dissenting opinion of Judge Park et al., para.10. Judge Anderson noted in para.7 of his dissenting opinion that Guinea did not submit its fisheries legislation to the Tribunal or rely upon it in its arguments before the Tribunal.

14. Quoted in the dissenting opinion of President Mensah, para.11.

15. Judgment, para.63.

16. Idem, para.66.

17. See the dissenting opinion of Judge Anderson, para.6, which quotes the relevant Guinean laws.

18. Ibid. In fact, as Judge Anderson noted, Guinea's territorial sea extends only to 12 miles. The definition of the customs territory quoted in the opinion appears, therefore, not to include the EEZ. That argument would, however, go to the question of the lawfulness of the arrest, rather than that of compliance with the obligations on prompt release: see supra n.5.

19. Idem, paras.6, 7.

20. Judgment, para.72.

21. The Tribunal is referring here to the lack of proof that the offence had in fact been committed within the 24-mile contiguous zone that Guinea is allowed under the Convention—though in fact it does not appear that Guinea has claimed any such zone.

22. Dissenting opinion of Judge Park et al., para.20.

23. See Mani, V. S., International Adjudication: Procedural Aspects (1980), who treats the point as an aspect of the right to be heard.

24. How would the development of the law of the sea have been affected if the 1945 Truman Proclamation on the continental shelf had been treated as an unlawful extension of the territorial sea rather than as a wholly novel claim, for example?

25. Though one of those judges, writing in an extra-judicial capacity, has indicated support for a wide interpretation of Art.292: see Treves, T., “The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea” (1996) 11 Int.J. Marine and Coastal Law 179, 186. That paper is one of a number in that issue of the Journal concerned with prompt release procedures.

26. Dissenting opinions of Judge Park et al., paras.23–26; Vice-President Wolfrum and Judge Yamamoto, paras.14–19; Judge Anderson, para.12.

27. A useful guide to the travaux préparatoires appears in the University of Virginia's Center for Oceans Law and Policy, op. cit. supra n.2.

28. If the Tribunal were to assert such a competence, it would inevitably have to rule upon fundamental questions concerning the interpretation of the 1982 Convention. That possibility runs counter to the view of the majority that they were not called upon to rule on the legality of the arrest (judgment, para.62), and seems inappropriate in the context of accelerated “prompt release” proceedings: see the dissenting opinion of President Mensah, para.23.

29. Judgment, para.76.

30. See the provisions of the LOSC, Part XV, section 2, which introduce, for instance, the possibility of prolonging litigation through preliminary proceedings (Art.294) and of Tribunal-appointed experts (Art.289). There appears to be no right for parties to contract out of these provisions. See also the ITLOS Guidelines Concerning the Preparation and Presentation of Cases before the Tribunal (http://www.un.org/Depts/los/guide.htm), which require parties to submit 125 copies of their pleadings.

31. Note that under LOSC Art.292(1) prompt release proceedings could be brought in the ordinary municipal courts if the parties so agree. It is not clear whether such domestic proceedings would preclude subsequent recourse to the ITLOS procedures.

32. Judgment, paras.57–59, 63–72.

33. Idem, paras.60–62.

34. Use of chambers of the ITLOS in prompt release cases might reduce this problem.

35. The judgment specified that, in the absence of agreement to the contrary between the parties, the security was to consist of the amount of gas oil discharged from the M/V Saiga, plus US$400,000, posted in the form of a letter of credit or bank guarantee.

36. See para.20 of the ITLOS order of 11 Mar. 1998 in The M/V “Saiga” (No.2).

37. Art.287(1).

38. Art.287(5).

39. See paras.14, 15 of the ITLOS order of 11 Mar. 1998, supra n. 36.

40. See idem, paras.3, 20–21 and 23. The request was in fact modified by St Vincent during the hearing, and Guinea objected to the modification. But the ITLOS allowed the modification because it did not prejudice the right of Guinea to respond, Guinea having been given sufficient notice of the modification: idem, paras.32–34.

41. See idem, paras.36, 38.

42. Idem, para.29.

43. Idem, para.3O.

44. This point was not lost on Judge Laing: see his separate opinion, para.22, n. 35.

45. Order of 11 Mar. 1998, supra n. 36, at para.40.

46. Idem, para.52.

47. Judge Laing, separate opinion, para.32.

48. Idem, paras.32, 41. Judge Vukas, declaration, para.3, appears to suggest that the ITLOS may even lack the competence to recommend, rather than prescribe, provisional measures.

49. Judge Vukas, declaration, paras.3–5.

50. As Judge Warioba put it in his declaration, “it is not a discretion which should be used simply because it is there”.

* The aim of this new section is to survey, on a selective basis, some of the more important decisions of new international tribunals.

The M/V Saiga: the First Case in the International Tribunal for the Law of the Sea

  • Malcolm D. Evans and Vaughan Lowe

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