Existence of a dispute concerning the interpretation or application of the Convention

• 46. Switzerland invokes articles 286 and 287 of the Convention as the basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded. The question the Tribunal has to address is whether the dispute submitted to the Annex VII arbitral tribunal is a “dispute concerning the interpretation or application of this Convention” referred to in those articles.

• 47. Switzerland alleges that “there undoubtedly is a dispute” between the Parties “within the definition given by the Permanent Court of International Justice in the Mavrommatis case and confirmed by the International Court of Justice in the East Timor case”. It states that it “repeatedly objected to Nigeria’s conduct” whereas “Nigeria responded with a deafening silence”. Switzerland further states that Nigeria “was aware of Switzerland’s position, yet refused to modify its conduct”, for which “one can easily infer that the dispute existed, and continues to exist between the two States”.

• 48. Switzerland claims that the dispute between Switzerland and Nigeria relates

  [Page 430] to the interpretation or application of the provisions of UNCLOS with respect to the rights and obligations of coastal States in their EEZ, and notably the asserted right to arrest and detain vessels flying the flag of a third State, as well as their crew and cargo.

  It further claims that the “dispute concerns in particular the interpretation and application of Parts V and VII of UNCLOS, including articles 56, paragraph 2, 58, 87, 92 and 94”.

• 49. Switzerland contends that “the Annex VII arbitral tribunal will have prima facie jurisdiction over Switzerland’s claim based on the International Covenant on Civil and Political Rights and also the Maritime Labour Convention”. It refers, in this regard, to article 56, paragraph 2, of the Convention, which states:

  In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

• 50. According to Switzerland, “the rights and duties of other States” are not limited to the provisions of the Convention but may include those under the International Covenant on Civil and Political Rights (hereinafter the “ICCPR”) and the Maritime Labour Convention (hereinafter the “MLC”). It argues in this context that “Nigeria has made it impossible for Switzerland, the flag State of the ‘San Padre Pio’, to discharge toward the crew its duties resulting from the International Covenant on Civil and Political Rights and the Maritime Labour Convention”, and adds that “[s]ome of these duties also result from customary law”.

• 51. In response to the argument that, in its exchange with Nigeria regarding the dispute, Switzerland had “never raised issues concerning rules of international law other than those of the Convention”, Switzerland claims that “in its aide-mémoires [it] actually had referred to such other rules of international law”.

• 52. In its Statement in Response, Nigeria states that “[a]t the present stage of the proceedings, [it] does not challenge the prima facie jurisdiction of the Annex VII arbitral tribunal over Switzerland’s first and second claims”. Nigeria does, however, “challenge the Annex VII arbitral tribunal’s prima facie jurisdiction over Switzerland’s third claim” on Nigeria’s alleged breach of its obligations to Switzerland relating to the ICCPR and the MLC.

• 53. In this respect, Nigeria notes that “[t]he Annex VII arbitral tribunal may have jurisdiction over Switzerland’s third claim only if, inter alia, the alleged dispute ‘concern[s] the interpretation or application of [the] Convention’” and states that

  [Page 431] [t]he alleged dispute [regarding Switzerland’s third claim] does not concern the interpretation or application of UNCLOS but rather the interpretation and application of the ICCPR and the MLC. It thus falls outside of the jurisdiction of the Annex VII arbitral tribunal.

• 54. Nigeria adds that “[a]rticle 56(2) does not grant Annex VII arbitral tribunals the jurisdiction to determine violations of instruments outside of UNCLOS”.

• 55. Nigeria also states that “a further reason why the Annex VII tribunal would not have prima facie jurisdiction over the third claim is that at the time of the institution of the Annex VII arbitral proceedings, no dispute had crystallized between the Parties over this claim”. In this context, Nigeria contends that no reference was made to article 56, paragraph 2, of the Convention, the ICCPR, or the MLC in the diplomatic exchanges between Switzerland and Nigeria.

* *

• 56. Article 288, paragraph 1, of the Convention provides that “[a] court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part”. The Tribunal accordingly has to determine whether, on the date of the institution of arbitral proceedings, a dispute appears to have existed between the Parties and, if so, whether such dispute concerns the interpretation or application of the Convention.

• 57. Although Nigeria did not respond to Switzerland’s position that the interception, arrest and detention of the M/T “San Padre Pio” constituted a violation of the provisions of the Convention, its view on this question may be inferred from its conduct. As the International Court of Justice (hereinafter the “ICJ”) stated in Land and Maritime Boundary between Cameroon and Nigeria:

  [A] disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis. In the determination of the existence of a dispute, as in other matters, the position or the attitude of a party can be established by inference, whatever the professed view of that party.

  (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, ICJ Reports 1998, p. 275, at p. 315, para. 89; see also M/V “Norstar” (Panama v. Italy), Preliminary Objections, Judgment, ITLOS Reports 2016, p. 44, at p. 69, para. 100; and Detention of three Ukrainian naval vessels

  (Ukraine v. Russian Federation), Provisional Measures, Order of 25 May 2019, para. 43)

• [Page 432] 58. The fact that the Nigerian authorities intercepted, arrested and detained the M/T “San Padre Pio” and commenced criminal proceedings against it and its crew members indicates that Nigeria holds a different position from Switzerland on the question whether the events that occurred on 22-23 January 2018 gave rise to the alleged breach of Nigeria’s obligations under the Convention.

• 59. The Tribunal is thus of the view that a dispute appears to have existed between the Parties on the date of the institution of arbitral proceedings.

• 60. The Tribunal is further of the view that at least some of the provisions invoked by Switzerland appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal might be founded.

• 61. The Tribunal accordingly considers that a dispute concerning the interpretation or application of the Convention prima facie appears to have existed on the date of the institution of the arbitral proceedings.

Article 283 of the Convention

• 62. The Tribunal will now proceed to determine whether the requirements under article 283 of the Convention relating to an exchange of views have been met.

• 63. Article 283, paragraph 1, of the Convention reads:

  When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.

• 64. Switzerland states that since 13 March 2018 it “has made regular and repeated attempts, through a range of channels and at various levels, to exchange views with Nigeria for the settlement of the dispute concerning the interception of the vessel, the arrest of the vessel and her crew and the detention of the vessel, her crew and cargo”. Switzerland further states that it “has made it clear that Nigeria’s actions were in breach of UNCLOS”.

• 65. Switzerland maintains that it submitted several diplomatic notes and four aide-mémoires to the Nigerian authorities, which indicate that “the actions of Nigeria in respect of the ‘San Padre Pio’ characterize violations of the law of the sea” and also demonstrate “Switzerland’s willingness to resolve the dispute”. In this context, Switzerland draws the attention of the Tribunal to the aide-mémoire of 25 January 2019, [Page 433] which was handed over by the Minister of Foreign Affairs of Switzerland to the Minister of Industry, Trade and Investment of Nigeria. In it, Switzerland stated:

  So far, efforts by Switzerland to solve this dispute through diplomatic means have been unsuccessful. In case no diplomatic resolution can be reached very shortly, Switzerland considers submitting the dispute to judicial procedure under the UN Convention on the Law of the Sea.

• 66. As regards its claims relating to rights under the ICCPR and the MLC contained in paragraph 40(c) and (d) of its Statement of Claim, Switzerland points out that, in its aide-mémoires, it made reference to rules of international law other than those of the Convention.

• 67. According to Switzerland, “[t]here has been no substantive response by the Nigerian authorities to the Swiss attempts to find a solution to the dispute through negotiations and to exchange views regarding the settlement of the dispute”. Switzerland states that “[i]t is clear that no settlement has been reached by recourse to section 1 of Part XV and that the obligation to exchange views has been met”.

• 68. Nigeria contends that “there had only been exchanges between the Parties concerning articles 58, paragraph 1, and 87 of UNCLOS, which concern the freedom of navigation”. It refers, in this regard, to the first and second aide-mémoires of Switzerland which “each specify the same two provisions” indicated above. Nigeria adds that “[t]he third and fourth do not specify any provisions of UNCLOS”.

• 69. Nigeria states that “[n]one of the aide-mémoires, nor any of the other exchanges between the Parties prior to the institution of arbitral proceedings, mention the International Covenant on Civil and Political Rights or the Maritime Labour Convention”. Nigeria further states:

  [T]he Tribunal recently affirmed … [that] the dispute in question needs to have crystallized “as of the date of the institution of arbitral proceedings”, and, when the dispute arose, the Parties must have “proceed[ed] expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means”.

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• 70. The Tribunal notes that Switzerland made repeated attempts to exchange views with Nigeria regarding the settlement of the dispute concerning the arrest and detention of the vessel, its crew and cargo, in particular by sending four aide-mémoires to the Nigerian authorities. In its aide-mémoire of 25 January 2019, transmitted at the ministerial [Page 434] level, Switzerland stated that “[i]n case no diplomatic solution can be reached very shortly, Switzerland considers submitting the dispute to judicial procedure” under the Convention.

• 71. In the view of the Tribunal, for the purpose of addressing the requirements under article 283 of the Convention, it is not relevant whether Switzerland referred to any specific claim or rights under the ICCPR and the MLC in its communications with Nigeria regarding the settlement of the dispute.

• 72. The Tribunal observes that Switzerland received no response from the Nigerian authorities to its various communications relating to the alleged breach of the Convention and other rules of international law and that Nigeria therefore did not engage in an exchange of views with Switzerland. Under these circumstances, the Tribunal considers that Switzerland could reasonably conclude that the possibility of reaching agreement was exhausted.

• 73. In this regard, the Tribunal recalls that “a State Party is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted” (MOX Plant (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, p. 95, at p. 107, para. 60; “ARA Libertad” (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports 2012, p. 332, at p. 345, para. 71; “Arctic Sunrise” (Kingdom of the Netherlands v. Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013, p. 230, at p. 247, para. 76; Detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures, Order of 25 May 2019, para. 87).

• 74. The Tribunal further recalls that “the obligation to proceed expeditiously to an exchange of views applies equally to both parties to the dispute” (M/V “Norstar” (Panama v. Italy), Preliminary Objections, Judgment, ITLOS Reports 2016, p. 44, at p. 91, para. 213; Detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures, Order of 25 May 2019, para. 88).

• 75. Accordingly, the Tribunal is of the view that these considerations are sufficient at this stage to find that the requirements of article 283 of the Convention were satisfied before Switzerland instituted arbitral proceedings.

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• 76. In light of the foregoing, the Tribunal concludes that prima facie the Annex VII arbitral tribunal would have jurisdiction over the dispute submitted to it.

Plausibility of rights asserted by the Applicant

• 77. The power of the Tribunal to prescribe provisional measures under article 290, paragraph 5, of the Convention has as its object the preservation of the rights of the Parties pending the constitution and functioning of the Annex VII arbitral tribunal. Before prescribing provisional measures, the Tribunal therefore needs to satisfy itself that the rights which Switzerland seeks to protect are at least plausible (see Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Provisional Measures, Order of 25 April 2015, ITLOS Reports 2015, p. 146, at p. 158, para. 58; “Enrica Lexie” (Italy v. India), Provisional Measures, Order of 24 August 2015, ITLOS Reports 2015, p. 182, at p. 197, para. 84; Detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures, Order of 25 May 2019, para. 91).

• 78. Switzerland maintains that the rights it seeks to protect are “the right to freedom of navigation and other internationally lawful uses of the sea, including bunkering, the exercise by Switzerland of its exclusive jurisdiction as a flag State and the rights of the crew, whose protection is incumbent on Switzerland as the flag State”.

• 79. Switzerland states that at this stage of the proceedings

  [w]hat is required is something more than assertion but less than proof; in other words, the party must show that there is at least a reasonable possibility that the right which it claims exists as a matter of law and will be adjudged [by the Tribunal] to apply to that party’s case.

  According to Switzerland, the existence of the rights invoked by it, their applicability to the facts of the present case and their violation “are more than ‘plausible’, they are indisputable”.

• 80. Switzerland claims that “Nigeria has violated Switzerland’s right to freedom of navigation and other internationally lawful uses of the sea related to this freedom in the EEZ under article 58 of UNCLOS, read in conjunction with article 87, including but not limited to the right to carry out STS [ship-to-ship] transfers between vessels.”

• 81. In this respect, Switzerland maintains that,

  by intercepting the “San Padre Pio” in its exclusive economic zone, about 32 nm off the coast and outside any safety zone which Nigeria could have established under article 60, paragraph 4, of the Convention, Nigeria hampered the freedom of movement of the vessel. Accordingly, it infringed Switzerland’s freedom of navigation.

• [Page 436] 82. Switzerland further maintains that Nigeria “hinders the possibility for the vessel to carry out bunkering activities, which … have been recognized by [the] Tribunal as being part of the freedom of navigation”.

• 83. Switzerland argues that “[t]he essential idea embodied in the principle of freedom of navigation is that of non-interference with the freedom of movement of the vessel in question”. It further argues that, in the M/V “Norstar” Case, the Tribunal “added … the possibility of carrying out bunkering activities provided they are not connected with fishing”.

• 84. Switzerland also claims that “Nigeria has violated Switzerland’s right to exercise exclusive flag State jurisdiction over its vessels under article 58 of UNCLOS, read in conjunction with article 92.” In this respect, it argues that article 92 of the Convention “is applicable in the exclusive economic zone by virtue of article 58, paragraph 2”.

• 85. Switzerland contends that,

  whether it be the interception of the vessel, its detention, the detention of its cargo, or the detention of its crew, at no time did Nigeria seek to obtain the consent of Switzerland as the flag State. Nigeria has therefore not only disregarded the exercise by Switzerland of its exclusive jurisdiction as the flag State, but continues to disregard it.

• 86. In Switzerland’s view, “there was no basis in international law for Nigeria to exercise enforcement jurisdiction against the vessel, her crew and cargo in respect of domestic laws in its EEZ and outside any safety zone established in accordance with international law”.

• 87. With regard to Nigeria’s invocation of article 56 of the Convention as a basis for its exercise of jurisdiction, Switzerland contends that “Nigeria’s interpretation of article 56 has no basis in the Convention and cannot be used to rebut Switzerland’s arguments on freedom of navigation and the bunkering related thereto”. Switzerland adds that,

  even if the “San Padre Pio”’s activities were to be associated with the extraction of resources from the seabed and subsoil within Nigeria’s EEZ … that would still not authorize Nigeria to exercise enforcement jurisdiction. This is because although Part V relating to the exclusive economic zone contains a special provision, namely article 73 … such a provision for non-living resources is absent from Part V on the exclusive economic zone and from Part VI on the continental shelf.

• 88. With regard to Nigeria’s invocation of articles 208 and 214 of the Convention as a basis for its exercise of jurisdiction, Switzerland argues that “[t]he provisions invoked are not applicable in this case, and [Page 437] even if they were, quod non, Nigeria would not have fulfilled its obligations as laid down in article 220, paragraphs 3, 6 and 7, article 228, paragraph 1, article 230 and article 231”. Switzerland adds that “Nigeria has never previously mentioned protection of the environment as part of the charges filed by its authorities and courts against the ‘San Padre Pio’, the crew or the charterer.”

• 89. Switzerland also claims that “Nigeria has failed, in breach of article 56(2) of UNCLOS, to have due regard to Switzerland’s obligations under article 94, including its duties under the 2006 Maritime Labour Convention (‘MLC’) towards seafarers on ships flying its flag”.

• 90. In addition, Switzerland claims:

  Nigeria has failed to have due regard, in breach of article 56(2) of UNCLOS, to

  • (i) the right of persons to liberty and security and the right not to be arbitrarily detained, as reflected in article 9(1) of the 1966 International Covenant on Civil and Political Rights (“ICCPR”) and customary international law;

  • (ii) the other rights of persons in connection with criminal proceedings, as reflected in article 9 of the ICCPR and customary international law.

• 91. Switzerland emphasizes that “[t]his does not in any way imply … that Switzerland seeks to apply this Convention to individuals”. In its view, Switzerland, “through Nigeria’s conduct, … has been deprived of its right as the flag State to ensure respect of its rights”. Switzerland adds that it “is not … exercising diplomatic protection”; rather, “[w]hat Switzerland can and does do is protect its own rights, as a flag State”.

• 92. According to Nigeria, none of the rights whose protection Switzerland seeks “are plausible in the present case because they are not applicable to the situation at hand”. In this connection, Nigeria states that

  a right is “plausible” only if it is applicable to the factual situation at hand. This does not mean that the Tribunal needs to examine the facts underlying the merits of the claim. But the Tribunal does need to undertake the limited examination of the facts that purport to establish the applicability of the right to the situation at hand.

• 93. Nigeria contends that,

  [a]s regards to the first two rights alleged by Switzerland under article 58 of the Convention, they are not plausible because Nigeria has the sovereign right and obligation under articles 56(1)(a), 208 and 214 of the Convention to exercise its enforcement jurisdiction over the bunkering incident in question. With respect to the rights alleged under the ICCPR and the MLC, they are also not [Page 438] plausible because Switzerland does not allege facts that constitute a breach of the rights specified in these conventions.

• 94. Nigeria maintains that “Switzerland’s asserted right regarding the freedom of navigation and other internationally lawful uses of the sea is not ‘compatible with [these] other provisions of the Convention’ [and] is thus not applicable in the present case and is therefore not a plausible basis upon which Switzerland can assert claims against Nigeria.”

• 95. Nigeria states that it “does not dispute that, in general, these freedoms apply to Nigeria’s EEZ”. It emphasizes, however, that “article 58 expressly provides that in the EEZ they are ‘subject to the relevant provisions of this Convention’”.

• 96. Nigeria further states that it “was exercising its sovereign right to enforce its laws and regulations concerning the conservation and management of the non-living resources in its EEZ when it arrested and initiated judicial proceedings against the San Padre Pio and its crew”.

• 97. Nigeria contends that

  the exercise of the freedom of navigation and other internationally lawful uses of the sea in Nigeria’s EEZ is subject to the rules set out in article 56(1)(a) of the Convention, which grants Nigeria, as the coastal State, the right to enforce its laws and regulations concerning the management of the natural resources in its EEZ.

  In Nigeria’s view, “[t]his encompasses the enforcement activities that Nigeria took against the San Padre Pio and its crew”.

• 98. Nigeria contends that “[t]he ‘San Padre Pio’ was bunkering facilities involved in the extraction of natural resources from the seabed and subsoil within Nigeria’s exclusive economic zone”. It argues that article 56, paragraph 1(a), of the Convention “makes clear that Nigeria, as a coastal State, has sovereign rights to exploit, conserve and manage the natural resources of the EEZ” and that “[t]his includes enforcement jurisdiction”.

• 99. Nigeria emphasizes that article 56, paragraph 1(a), of the Convention “applies to both living and non-living resources” and that “[a]s a result, the coastal State’s competence—including its ‘right to take the necessary enforcement measures’—extends to the management of non-living resources in its EEZ”. Nigeria further emphasizes that article 56, paragraph 1(a), of the Convention “contains no specific limitations” and that article 73 “makes no mention of, and does not affect, enforcement related to non-living resources”.

• 100. Nigeria further contends that articles 208 and 214 of the Convention “impose on Nigeria the obligation to enforce its laws and [Page 439] regulations concerning pollution from seabed activities in its EEZ, and as such, they serve as an independent basis for Nigeria to take the enforcement actions it did against the San Padre Pio and its crew”. Nigeria emphasizes in this regard that “bunkering carried out in connection with seabed activities is a major source of pollution of the marine environment”.

• 101. According to Nigeria, “the principle of exclusive flag State jurisdiction does not apply in the present case”. It argues that, “[i]f it did, then the sovereign and exclusive rights of the coastal State enshrined in Part V of the Convention could never be enforced against foreign flagged vessels without the consent of the flag State” and that “[t]his would make law enforcement in an environment like the Gulf of Guinea impossible”.

• 102. Nigeria further argues that articles 58 and 92 of the Convention “grant the flag State exclusive jurisdiction over the ship, but not if there is a provision in the Convention providing otherwise”.

• 103. With regard to Switzerland’s claim relating to the MLC and the ICCPR, Nigeria states that “[e]ven if there were prima facie jurisdiction with respect to Switzerland’s ICCPR and MLC claims, the rights asserted by Switzerland are not plausible because they are not applicable to the present case”. It emphasizes that “UNCLOS contains no ‘right to seek redress’ of breaches of other treaties”.

• 104. Nigeria further contends that “there is no question that the arrest, detention, and initiation of judicial proceedings against the crew of the San Padre Pio were not arbitrary or unlawful”. It also argues that “Switzerland does not cite to any specific right enshrined [in the MLC] that is called into question in the present proceedings” and that, “[i]ndeed, no such right is applicable to the present case”.

* *

• 105. At this stage of the proceedings, the Tribunal is not called upon to determine definitively whether the rights claimed by Switzerland exist, but need only decide whether such rights are plausible (Detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures, Order of 25 May 2019, para. 95; see “Enrica Lexie” (Italy v. India), Provisional Measures, Order of 24 August 2015, ITLOS Reports 2015, p. 182, at p. 197, para. 84).

• 106. The first two rights Switzerland seeks to protect are rights to the freedom of navigation and other internationally lawful uses of the sea related to this freedom in the exclusive economic zone under article 58 of the Convention, and rights to exercise exclusive flag State jurisdiction over its vessels under article 92 of the Convention, which [Page 440] applies to the exclusive economic zone by virtue of article 58, paragraph 2.

• 107. The Tribunal notes that Switzerland claims that bunkering activities carried out by the M/T “San Padre Pio” in the exclusive economic zone of Nigeria are part of the freedom of navigation and that it has exclusive jurisdiction as the flag State over the vessel with respect to such bunkering activities. The Tribunal further notes that Nigeria argues that it has sovereign rights and obligations under articles 56, paragraph 1(a), 208 and 214 of the Convention to exercise its enforcement jurisdiction over the bunkering activities in question in its exclusive economic zone.

• 108. In the Tribunal’s view, taking into account the legal arguments made by the Parties and evidence available before it, it appears that the rights claimed by Switzerland in the present case on the basis of articles 58, paragraphs 1 and 2, and 92 of the Convention are plausible.

• 109. The third right Switzerland seeks to protect concerns Nigeria’s obligation to have due regard to rights and duties of Switzerland in the exclusive economic zone of Nigeria under article 56, paragraph 2, of the Convention. Switzerland claims that those rights and duties include “its right to seek redress on behalf of crew members and all persons involved in the operation of the vessel, irrespective of their nationality, in regard to their rights under the ICCPR and the MLC”, and its “obligations under article 94, including its duties under the 2006 Maritime Labour Convention (‘MLC’) towards seafarers on ships flying its flag”.

• 110. The Tribunal considers that the question of whether the third right asserted by Switzerland is plausible would have required the examination of legal and factual issues which were not fully addressed by the Parties in the proceedings before it. Having established that the first and second rights asserted by Switzerland are plausible, the Tribunal, therefore, does not find it necessary to make a determination of the plausible character of the third right at this stage of the proceedings.

Real and imminent risk of irreparable prejudice

• 111. Pursuant to article 290, paragraph 5, of the Convention, the Tribunal may prescribe provisional measures if the urgency of the situation so requires. Accordingly, the Tribunal may not prescribe such measures unless there is a real and imminent risk that irreparable prejudice may be caused to the rights of parties to the dispute before the constitution and functioning of the Annex VII arbitral tribunal [Page 441] (see “Enrica Lexie” (Italy v. India), Provisional Measures, Order of 24 August 2015, ITLOS Reports 2015, p. 182, at p. 197, para. 87). The Tribunal therefore has to determine whether there is a risk of irreparable prejudice to the rights of the Parties to the dispute and whether such risk is real and imminent (Detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures, Order of 25 May 2019, para. 100).

• 112. Switzerland contends that the requirement of urgency under article 290, paragraph 5, of the Convention is met in respect of the provisional measures requested by Switzerland. It explains that urgency under this provision “means that the party requesting provisional measures needs to show that there is a real and imminent risk that irreparable prejudice may be caused before the constitution and functioning of the Annex VII arbitral tribunal”.

• 113. Switzerland underlines that what matters for the provisional measures proceedings under article 290, paragraph 5, of the Convention is “whether a risk will emerge between now and the time when the Annex VII arbitral tribunal is constituted and is itself operational and able to prescribe provisional measures”. It denies the requirement of an exceptional level of urgency under that provision. In response to the argument of Nigeria that there is no urgency because of the time which had passed before Switzerland instituted proceedings, Switzerland states that “the Swiss Government cannot be blamed for having, assiduously and in good faith, sought a negotiated settlement and attempted to engage Nigeria in a discussion on how to settle this dispute”, while “[t]hese two steps are formally required by the Convention”.

• 114. Switzerland claims that serious prejudice has already been caused to its rights and that there is a real and imminent risk that further serious or irreparable prejudice will be caused to its rights until such time as the Annex VII arbitral tribunal has been constituted and is ready to exercise its functions. It further claims that “[a]s at the date of the present Request for Provisional Measures, the vessel, her crew and cargo are still detained, and have been for sixteen months” and that “[t]his is causing serious risks to the vessel, her crew and cargo” whereas “[t]hese risks are real and imminent”.

• 115. Switzerland argues that the ongoing detention of the M/T “San Padre Pio” denies Switzerland “the right to freedom of navigation in respect of a vessel flying its flag, and the right to exercise jurisdiction over its vessel”. According to Switzerland, the denial of those rights “is not capable of purely monetary reparation”. Switzerland also argues that “[f]urther prolonging that detention would add to the continuing [Page 442] and irreparable injury that Switzerland is suffering”. It states that the ongoing detention “puts the vessel at a severe risk” that it may soon be unseaworthy “due to the impossibility to continue the highest levels of maintenance required”. Switzerland adds that “[t]he forced detention does indeed create risks for the vessel in terms of collision and in the event of rough weather conditions”.

• 116. Switzerland states that the Master and the three other officers “have been and continue to be deprived of their right to liberty and security as well as their right to leave the territory and maritime areas under Nigeria’s jurisdiction”. It further states that “[t]he damage suffered by the Master and the three other officers … is clearly irreparable, as every day spent in detention is irrecoverable”. According to Switzerland, the ongoing detention puts at risk the safety and security of the Master and the three other officers, who “remain at constant risk of being kidnapped, injured or even killed”.

• 117. In this context, Switzerland draws attention to a “piratical attack” against the M/T “San Padre Pio”, which took place on 15 April 2019. It states that it is conceivable that such an attack will be repeated and that this may happen “at any time before the Annex VII arbitral tribunal is in a position to act”. Switzerland further states that “[t]his permanent risk of physical and psychological harm to the crew underlines the gravity of the situation and the urgent need for provisional measures”. It adds that “in light of the piratical attacks in the region, a permanent risk exists that the vessel, together with her cargo, will be hijacked, with serious consequences for the persons concerned”.

• 118. Switzerland argues that the ongoing detention of the vessel also puts its cargo at risk, and that, “[i]n light of the recent extension of the charges to the charterer, the cargo appears at risk of being imminently seized”. According to Switzerland, the cargo is deteriorating and at risk of being lost since the vessel has been forced to use it for its own functioning. In addition, the “preservation of its quality cannot be guaranteed”.

• 119. Switzerland maintains that, “as a consequence of the actions taken by Nigeria in connection with the interception, arrest and detention of the ‘San Padre Pio’, persons involved or interested in the operation of that vessel have suffered and continue to suffer damages of a personal and economic nature”.

• 120. Nigeria contends that “Switzerland’s request for provisional measures should … be rejected because it does not comply with the conditions of urgency and risk of irreparable harm required by article 290(5) of UNCLOS.” It states that this provision should “only be [Page 443] resorted to in … extremely urgent circumstances when the alleged irreparable prejudice will likely materialize in the time between the request for provisional measures and the constitution and functioning of the Annex VII arbitral tribunal, which ordinarily only takes a few months”. For this reason, it alleges that “[p]rovisional measures under article 290, paragraph 5, are even more exceptional than ordinary provisional measures under article 290, paragraph 1”.

• 121. Nigeria maintains that “[t]he absence of urgency is clear” because it took Switzerland almost sixteen months from the arrest of the vessel to institute arbitral proceedings and request provisional measures.

• 122. Nigeria contends that “Switzerland has also failed to establish that urgent measures are needed to prevent harm to the vessel and its cargo.” As to the vessel, it states that its condition “will not materially change in the few months it will take to form the Annex VII arbitral tribunal” and that “the time required for repair of the vessel will remain materially unchanged between the present time and the composition of the Annex VII arbitral tribunal”.

• 123. Nigeria argues that “any alleged harm to the vessel, to the cargo, and to their owners is, or rather would be, economic only” and that “[r]eparation for any such harm, were it to occur, can easily be provided through the award of monetary compensation by the Annex VII tribunal”. It adds that “any loss that might be caused by damage to the vessel or the cargo … cannot justify the indication of provisional measures by the Tribunal”.

• 124. With respect to the cargo, Nigeria is of the view that “there can be no situation of urgency … since the Nigerian court has already issued an interim forfeiture order and authorized that it be sold and its economic value preserved, pending the hearing and determination of the charges”. In response to Switzerland’s argument concerning deterioration of the cargo, Nigeria states that such harm is “purely economic” and that “the Nigerian authorities have sought to take steps to prevent any economic damage”.

• 125. Nigeria contends that “Switzerland has failed to establish that the rights of the officers and crew … are currently exposed to a risk of imminent irreparable prejudice”. It maintains that “[t]he current presence of the officers and crew on the vessel is voluntary” and that “the officers who are currently subject to criminal proceedings in Nigeria received bail, under the sole requirement that they do not leave the country”.

• 126. Nigeria maintains that “the conditions on the vessel are the same as the normal working conditions of those who man the vessel in [Page 444] its ordinary seafaring activities”. It further maintains that “the vessel is fully supplied with food, water and other necessities”. Nigeria adds that “there are no restrictions on the ability of the crew to communicate with persons not on board the vessel nor have the Nigerian authorities impeded medical professionals from visiting or scheduling appointments with the crew”.

• 127. Nigeria emphasizes that “[t]he vessel is under the protection of the Nigerian Navy, which has deployed armed guards on board the vessel since it was arrested”. As to the pirate attack of 15 April 2019, it contends that it was those armed guards that successfully prevented it and that “[s]ince that incident, the Nigerian Navy has increased the number of guards on the vessel and has stationed a gun boat in close proximity to the vessel”.

* *

• 128. The Tribunal notes that in the present case the M/T “San Padre Pio” was arrested and detained for bunkering activities it carried out in the exclusive economic zone of Nigeria. The Tribunal considers that, in the circumstances of the present case, such arrest and detention could irreparably prejudice the rights claimed by Switzerland relating to the freedom of navigation and the exercise of exclusive jurisdiction over the vessel as its flag State if the Annex VII arbitral tribunal adjudges that those rights belong to Switzerland. In the Tribunal’s view, there is a risk that the prejudice to the rights asserted by Switzerland, with respect to the vessel, cargo and crew—which constitute a unit—may not be fully repaired by monetary compensation alone.

• 129. The Tribunal notes that the M/T “San Padre Pio” has not only been detained for a considerable period of time but also that the vessel and its crew are exposed to constant danger to their safety and security. In this regard, the Tribunal takes note of the armed attack against the M/T “San Padre Pio” that took place on 15 April 2019, endangering the lives of those on board the vessel. The Tribunal further notes the report on piracy and armed robbery against ships (1 January-31 March 2019) of the International Chamber of Commerce—International Maritime Bureau, which states that the Gulf of Guinea accounts for 22 of 38 incidents of piracy and armed robbery against ships for the first quarter of 2019 and that 14 incidents are recorded for Nigeria. Thus, despite the measures to strengthen the security of the vessel taken by the Nigerian authorities following the armed attack, the Tribunal is of the view that the vessel and the crew and other persons on board appear to remain vulnerable. The Tribunal, accordingly, considers that the risk of irreparable prejudice is real and ongoing in the present case.

• [Page 445] 130. The Tribunal also considers that the threat to the safety and security of the Master and the three officers of the M/T “San Padre Pio”, and the restrictions on their liberty and freedom for a lengthy period, raise humanitarian concerns.

• 131. In light of the above circumstances, the Tribunal finds that there is a real and imminent risk of irreparable prejudice to the rights of Switzerland pending the constitution and functioning of the Annex VII arbitral tribunal. The Tribunal accordingly finds that the urgency of the situation requires the prescription of provisional measures under article 290, paragraph 5, of the Convention.

I. Introduction

• 1. The Tribunal’s Order for the prescription of provisional measures seeks to balance the rights claimed by both Parties pending the constitution and functioning of the Annex VII arbitral tribunal for this dispute.Footnote ¹

• 2. For the Swiss Confederation (hereinafter “Switzerland”), the Tribunal has ordered that the M/T “San Padre Pio” (hereinafter “the vessel”), its cargo, and the Master and three officers of the vessel (hereinafter “four officers”), be allowed to depart from the Federal Republic of Nigeria (hereinafter “Nigeria”).Footnote ²

• 3. For Nigeria, the Tribunal has not agreed to Switzerland’s request that the Tribunal suspend Nigerian court and administrative proceedings relating to the incident that occurred in January 2018, or refrain [Page 460] from initiating new ones.Footnote ³ Further, the Tribunal has ordered that—before the vessel, cargo and four officers depart from Nigeria—two measures must be in place. First, a very substantial bond or financial security, in the form of a bank guarantee, must be issued in Nigeria’s favour.Footnote ⁴ The amount of that bank guarantee extends beyond the value of the vessel and cargo, so as to include an amount to be available if the four officers do not return to Nigeria for the criminal proceedings against them. Second, the Tribunal has ordered that Switzerland must make a legally binding undertaking to Nigeria ensuring the return of the four officers for the Nigerian criminal proceedings.Footnote ⁵ Both measures are designed, notwithstanding the departure of the vessel, cargo and four officers from Nigeria, to protect Nigeria’s rights if it prevails before the Annex VII arbitral tribunal.

• 4. While I can agree overall with the balancing approach taken by the Tribunal, I write to express my views regarding certain aspects of the Tribunal’s Order. I first address the Tribunal’s determination that, at this stage in the proceedings, Switzerland’s first and second claims appear to be plausible, but that the Tribunal is unwilling to make such a determination with respect to Switzerland’s third claim (Section II). While I agree with the Tribunal’s conclusions, I wish to explain in greater depth why that is so. I then indicate my views on the question as to whether the urgency of the situation requires the prescription of provisional measures (Section III). Finally, I consider whether the measures prescribed by the Tribunal are appropriate to preserve the rights of the Parties (Section IV). With respect to this issue, I believe that it would have been more appropriate to fashion a provisional measure that kept the four officers in Nigeria, leaving the Annex VII arbitral tribunal to decide, at a later time, whether to prescribe further measures in that regard. Whatever urgency may exist, addressing it does not appear to require that the officers be allowed to depart Nigeria and, notwithstanding the two important measures fashioned by the Tribunal to protect Nigeria’s rights, such departure appears to prejudice unnecessarily those rights.

• 5. I wish to stress that the views below in no way prejudge any question that may come before the Annex VII arbitral tribunal, including the question of its jurisdiction to deal with the merits of the case, or any question relating to the admissibility of the claims or to their merits. My views are solely based on the very limited pleadings made [Page 461] to the Tribunal and the very limited nature of this stage of the proceedings.

II. Requirement of urgency: Are Switzerland’s claims plausible?

• 6. Article 290 of the United Nations Convention on the Law of the Sea (hereinafter “the Convention”) grants authority to the Tribunal to prescribe provisional measures of protection if it considers that (a) prima facie the Annex VII arbitral tribunal would have jurisdiction over this dispute, (b) the urgency of the situation so requires, and (c) the measures are appropriate to the circumstances to preserve the rights of the Parties pending the final decision of the Annex VII arbitral tribunal.Footnote ⁶ I concur with and do not see a need to address further the reasoning of the Tribunal with respect to (a), other than to note the Tribunal’s “view that at least some of the provisions invoked by Switzerland appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal might be founded”.Footnote ⁷

• 7. With respect to (b), although not identified as an express requirement in article 290 of the Convention, the Tribunal’s jurisprudence on provisional measures of protection has evolved so as to include an assessment, first, of whether the rights being advanced by an applicant are at least “plausible”,Footnote ⁸ and then of whether there is urgency in protecting those rights. If the rights are not plausible, then the extraordinary step of ordering provisional measures should not be taken to protect the asserted rights. The exact contours of the concept of “plausibility” of rights is somewhat illusive; it would seem to require something more than a simple assertion, but something less than full proof.Footnote ⁹ In essence, the party must show that there is a reasonable possibility that the right which it claims exists as a matter of law and that the tribunal at the merits phases will view the right as being relevant to the facts of the case.

• 8. Switzerland’s claims, as set forth in the “relief sought” at the end of Switzerland’s Notification and Statement of Claim (hereinafter [Page 462] “Statement of Claim”),Footnote ¹⁰ are that Nigeria has violated Switzerland’s rights under the Convention by infringing:

  • (1) Switzerland’s right to freedom of navigation (articles 58 and 87 of the Convention) (hereinafter “claim 1”);

  • (2) Switzerland’s right to exercise exclusive jurisdiction over its flag vessels (articles 58 and 92 of the Convention) (hereinafter “claim 2”); and

  • (3) Switzerland’s right to seek redress on behalf of crew members and all persons involved in the operation of the vessel, irrespective of their nationality, in regard to their rights under the [International Covenant on Civil and Political Rights (hereinafter “ICCPR”)] and the [Maritime Labour Convention (hereinafter “MLC”)], and under customary international law [hereinafter “claim 3”].

  Switzerland explains elsewhere in its Statement of Claim that this claim concerns a breach of Nigeria’s obligation under article 56, paragraph 2, of the Convention to have due regard to Switzerland’s rights and duties, including, with respect to the MLC, Switzerland’s “obligations” under article 94.Footnote ¹¹

• 9. The Tribunal determines that Switzerland’s claims 1 and 2 are plausible,Footnote ¹² but does not make such a determination with respect to claim 3.Footnote ¹³ I agree with the Tribunal’s approach, but wish to elaborate on why it is correct.

III. Requirement of urgency: Is there a real and imminent risk of irreparable prejudice?

• 32. Given the plausibility of Switzerland’s claims 1 and 2, the Tribunal then considers whether “there is a real and imminent risk that irreparable prejudice could be caused to the rights of the parties to the dispute pending” the establishment and functioning of the Annex VII arbitral tribunal.Footnote ²⁹ If so, then the “urgency” requirement for prescribing provisional measures has been met.

IV. Are the Tribunal’s provisional measures appropriate under the circumstances to preserve the respective rights of the Parties?

• 43. I turn now to whether the Tribunal’s provisional measures are appropriate under the circumstances to preserve the respective rights of the Parties, as is also required by article 290 of the Convention.

• [Page 474] 44. The Tribunal has decided, correctly in my view, not to accept Switzerland’s request that Nigeria be ordered to suspend all court and administrative proceedings and refrain from initiating new proceedings.Footnote ⁴⁸ Consequently, Nigeria can continue such proceedings and initiate new ones as necessary for the exercise of its national jurisdiction relating to the facts of this case.

• 45. With respect to the release of the vessel and crew, the Tribunal has required that there first be posted a bond or other financial security in the amount of US$ 14,000,000 with Nigeria in the form of a bank guarantee.Footnote ⁴⁹ It is not clear whether this posting will be made by Switzerland or by some other entity, such as the shipowner, but the amount of the guarantee appears sufficient to cover the present value of the vessel and its cargo. As such, if the Annex VII arbitral tribunal finds that the arrest and detention of the vessel, its cargo and its crew by Nigeria do not constitute a violation of the Convention, and if a Nigerian court in the exercise of Nigeria’s jurisdiction issues a fine against the vessel, Nigeria should be in no worse position in securing payment of that fine than it would be if the vessel and its cargo remained in Nigeria.

• 46. The provisional measure, however, has been crafted so as to order Nigeria also to allow the four officers charged with violating Nigerian criminal law to leave the country. In my view, the provisional measure should not have extended this far. Once the vessel and cargo are allowed to leave Nigeria, there is no longer any need for the four officers to locate themselves on the vessel in waters that the Tribunal regards as dangerous. Instead, they may reside anywhere they wish in Nigeria. To the extent that Switzerland is concerned for the safety of the four officers residing in Nigeria, there is no reason it could not assist in identifying safe accommodations for them, as it no doubt does for its own diplomatic and consular personnel. A provisional measure by the Tribunal might even have called upon Nigeria to cooperate with Switzerland in identifying such accommodation, if necessary.

• 47. Yet instead the Tribunal has included in the provisional measure that Nigeria allow the four officers to leave Nigeria. The Tribunal does not explain why the provisional measure extends this far.

• 48. Presumably the reason for allowing the four officers to depart Nigeria is not because a coastal State’s refusal to allow an individual who is under criminal indictment to leave its territory is, ipso facto, a different form of imminent and irreparable harm, nor that officers of a vessel must always stay with it as “a unit”. If that were the case, then the [Page 475] Tribunal would have ordered in the “Enrica Lexie” case that an Italian marine, who had been kept in India for more than three years, be allowed to return to Italy, yet it did not.Footnote ⁵⁰ Moreover, that reasoning would mean that any coastal State exercising criminal jurisdiction in territorial waters, or in waters where it has sovereign rights, cannot keep in its territory a crew member from a foreign-flagged vessel charged with violating the coastal State’s criminal law. Rather than automatically ordering departure from the coastal State’s territory, previously the Tribunal appears to have only ordered departure under certain circumstances, such as when the immunity of a warship and its crew are being deniedFootnote ⁵¹ or when the absence of the respondent in the proceedings has resulted in uncertainty as to the status and condition of persons being held in detention.Footnote ⁵²

• 49. Alternatively, the reason for crafting the provisional measure in this way might be the nature of the criminal charges brought by the coastal State and their associated penalties. In “Enrica Lexie”, the allegation was of murder in the exclusive economic zone, not criminal activity relating to non-living resources. Yet if such gravity in the charges is the reason for this part of the Tribunal’s provisional measure, then the vast majority of reasons as to why a coastal State might exercise criminal jurisdiction over its maritime areas might be insufficient for keeping an indicted person in its territory. If the reason relates to something specific about Nigerian law in this regard, neither Party advanced arguments before the Tribunal along those lines.

• 50. A third reason may be one advanced by Switzerland during the hearing. According to the Agent of Switzerland,

  the four men on land would face a very worrying security situation. As regards Port Harcourt, armed confrontation takes place regularly, and travelers are explicitly advised not to travel to the coastal area close to the “San Padre Pio”. The situation is in fact no better in the rest of the country.Footnote ⁵³

  Here the argument would be that the four officers cannot reside anywhere in Nigeria because the entire country is unsafe. There should be doubts about this as the explanation for the scope of the Tribunal’s provisional measure, given the geographic size of Nigeria and the large [Page 476] numbers of foreigners currently living in Nigeria, including those working for foreign companies and in the diplomatic and consular community. In any event, no evidence was placed before the Tribunal indicating that the four officers faced a real and imminent risk of harm everywhere in Nigeria, let alone faced such a risk even if accorded assistance from Switzerland.

• 51. By contrast, Nigeria has explained to the Tribunal in some depth why it is of critical importance to Nigeria to be able to regulate and enforce against complex criminal activity it currently faces with respect to the theft, illegal refinement and unlicensed sale of oil products in Nigeria and its maritime zones.Footnote ⁵⁴ To that end, Nigeria has presented to the Tribunal through sworn affidavitsFootnote ⁵⁵ and Nigerian court documentsFootnote ⁵⁶ the circumstances and reasons for the arrest of the vessel and its crew and the basis for the charges against them. While Switzerland has raised questions about the speed with which the Nigerian criminal proceedings have advanced, Nigeria appears to have acted reasonably in withdrawing criminal charges against most of the vessel’s crew and in allowing the four officers to be released from prison on bail pending their trial. In short, Nigeria has demonstrated in good faith that it faces a serious threat of criminal activity and that, in its view, the actions taken against the vessel and its crew were part of an ongoing effort to respond to that threat.

• 52. If Switzerland fails to persuade the Annex VII arbitral tribunal that its right to freedom of navigation or to exclusive jurisdiction over its flag vessels, or that Switzerland’s duties to the crew of one of its flag vessels, were infringed by Nigeria, then Nigeria’s right to regulate and enforce against the vessel and its crew will be irrefutable. Such enforcement includes Nigeria’s right to pursue criminal proceedings in its courts against the four officers. By issuing a provisional measure that results in the four officers departing the country, Nigeria may be unable to proceed with a trial of the four officers, and will be unable to incarcerate the four officers if convicted at trial, unless the four officers return to Nigeria. Thus, if the four officers do not return, the Tribunal will have failed to preserve the rights of Nigeria.

• 53. The Tribunal has attempted to protect Nigeria’s rights in this regard by requiring certain measures, but has had to do so without specific proposals from or consultations with the Parties. At the hearing, counsel for Switzerland intimated to the Tribunal that unspecified [Page 477] “procedures exist for securing the return of Ukrainian officers”.Footnote ⁵⁷ When questioned by the Tribunal as to what those procedures might be, the answer by a different counsel was that the matter might be pursued: (a) with Nigerian authorities; (b) with Ukrainian authorities; and (c) by having the four officers “give some form of formal undertaking to the court to return under certain circumstances in light of the outcome of the arbitration”.Footnote ⁵⁸ For its part, Nigeria did not make any proposals, and stood by its view that the four officers should not be allowed to depart Nigeria.

• 54. In the absence of any specific proposals from or consultations with the Parties, the Tribunal on its own has decided to adopt two measures that must be in place before the four officers may depart Nigeria. First, the bond or financial security discussed above (paragraph 45) is set at a level that exceeds the value of the vessel and its cargo, thereby creating a financial incentive for the return of the four officers, as well as an ability of Nigeria—if they do not return—to levy a fine that can be satisfied as against the bond or financial security. Second, Switzerland must undertake to ensure to Nigeria that the four officers will return for the criminal proceedings.Footnote ⁵⁹ The Order expressly provides that this unilateral act by Switzerland vis-à-vis Nigeria is to be a legally binding obligation;Footnote ⁶⁰ as such, a breach of the undertaking will constitute an internationally wrongful act by Switzerland for which Nigeria may seek reparation.

• 55. While the establishment of these two measures goes some distance in protecting the rights of Nigeria, doing so without the active participation of the Parties presents serious questions as to how exactly these measures will work. There are no actual procedures yet in place to ensure the return of the four officers to Nigeria. The bond or financial security may provide a financial incentive to see that the four officers return, but it remains unclear who will be paying the bond or financial security, and what control that payer will have over the four officers if the officers do not wish to return to Nigeria. The undertaking by Switzerland imposes a serious international obligation upon it, but the four officers are Ukrainian not Swiss nationals, so it is not clear what authority, if any, Switzerland will have over their movements. [Page 478] The Ukrainian government is not a party to these proceedings and, if the four officers return to Ukraine, it appears that Ukraine does not extradite its own nationals.

• 56. In my view, it would have been better for the Tribunal not to have ordered that the four officers be allowed to depart Nigeria at this time, as there appears to be no urgency that they do so once they relocate from the vessel to accommodations in Nigeria. If Switzerland could demonstrate such urgency to the Annex VII arbitral tribunal, that tribunal could have developed an appropriate provisional measure, based on specific proposals from the Parties as to how the return of the four officers to Nigeria could be ensured.

• 57. As such, I do not think that the Tribunal has adequately protected Nigeria’s rights in allowing the four officers to leave Nigeria. Had the Tribunal crafted its dispositif so as to allow judges to vote on individual aspects of the provisional measure, I would have voted against this aspect of the Tribunal’s Order.

Release of the vessel, its cargo, and the Master and the three officers

• 2. I consider the release of the vessel, its cargo, and the Master and the three officers to be an appropriate measure. I adhere to the reasoning set out in paragraphs 128 to 130 of the Order demonstrating that the requirement of a real and imminent risk of irreparable prejudice is met in the present case. A further argument, which finds its basis in the Convention itself, should be added.

• 3. Article 56, paragraph 2, of the Convention stipulates that in exercising its rights under the Convention in the exclusive economic zone, the coastal State “shall act in a manner compatible with the provisions of this Convention”. Article 225 of the Convention, entitled “Duty to avoid adverse consequences in the exercise of the powers of enforcement”, is one of these provisions and reads:

  In the exercise under this Convention of their powers of enforcement against foreign vessels, States shall not endanger the safety of navigation or otherwise create any hazard to a vessel, or bring it to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk.

  (emphasis added)

• [Page 479] 4. Even though the provision is located in Part XII of the Convention on the Protection and Preservation of the Marine Environment, it must also be observed when enforcement powers are exercised by the coastal State under Part V of the Convention. This accrues from the words “under this Convention”, which indicate a broader scope of application than the words “under this Part” used in other safeguard provisions of Part XII (for example, in articles 224 and 227 of the Convention). The interpretation that article 225 of the Convention is of general application—and thus applies to enforcement powers exercised on the basis of Part V of the Convention—has already been confirmed by the Tribunal in M/V “Virginia G” (Panama/Guinea–Bissau), Judgment, ITLOS Reports 2014, p. 4, at p. 105, para. 373. The obligation of the coastal State not to bring an arrested vessel to an unsafe anchorage is formulated in an absolute fashion.

• 5. During the hearings, both Parties referred to the fact that the Gulf of Guinea is plagued by piracy and armed robbery against ships.Footnote ¹ Paragraph 129 of the Order makes reference to the Report on Piracy and Armed Robbery Against Ships (1 January-31 March 2019) by the International Chamber of Commerce—International Maritime Bureau, according to which 14 of the 38 incidents of piracy and armed robbery against ships worldwide took place in Nigerian waters. As regards the place of detention specifically, the International Chamber of Commerce—Commercial Crime Service notes on its website that “there has been a noticeable increase in attacks/hijackings/kidnapping of crews” off Bonny Island and Port Harcourt and “[v]essels are advised to take additional measures in these high risk waters”.Footnote ² As noted in paragraph 129 of the Order, the risk materialized on 15 April 2019, when the M/T “San Padre Pio” came under armed attack, endangering the lives of those on board the vessel. Furthermore, Switzerland pointed to another source of risk, which is collisions. It stated that on 5 June 2019, “the ‘M/V Invictus’ dragged its anchor and collided twice with the ‘San Padre Pio’” and that “[t]he inspection report indicates that the ‘M/V Invictus’ was without crew and had been detained by the Nigerian authorities for over three years”.Footnote ³ This evidence allows for the conclusion that Bonny Inner Anchorage, where [Page 480] the M/T “San Padre Pio” is detained, cannot be considered a safe place for anchorage.

• 6. Article 225 of the Convention prohibits bringing ships to an unsafe anchorage because doing so may have “adverse consequences” for the vessel—as accrues from the title of the provision. The provision thus rests on the assumption that anchorage in an unsafe area as such implies a risk of adverse consequences for the vessel and crew. A fortiori there is a real and imminent risk of irreparable prejudice present in situations where specific security risks of an unsafe anchorage have already materialized—as in the case at hand. Hence, the requirement of real and imminent risk of irreparable prejudice is clearly fulfilled.

• 7. The situation in which the detained vessel finds itself is a direct result of the alleged violation by Nigeria of both the freedom of navigation and the exclusive flag State jurisdiction. This situation exposes the crew of the M/T “San Padre Pio” to an imminent and real risk to their health, life and liberty. With the release of the vessel, its cargo, and the Master and the three officers, the Tribunal recognizes “the human realities behind disputes of states” (Rosalyn Higgins, Interim Measures for the Protection of Human Rights, 36 Columbia Journal of Transnational Law 91 (1998), p. 108)—a reality that raises humanitarian concerns in the case at hand.

Bond or other financial security

• 8. Since “the Order must protect the rights of both Parties” (“Enrica Lexie” (Italy v. India), Order of 24 August 2015, ITLOS Reports 2015, p. 182, at p. 203, para. 125), the release of the vessel, its cargo, and the Master and three officers must be counterbalanced by means that sufficiently preserve the rights asserted by Nigeria. In my view, the quid pro quo package put together by the Tribunal is not entirely satisfactory, but it represents a formula receiving support from a solid majority of judges.

• 9. Even though the bond has not been adopted within the framework of prompt release proceedings, there is no reason to depart from the principle adhered to in this type of proceedings that the bond should be reasonable, because it is the reasonableness of the bond which ensures that the interest of the flag State in the release of the vessel, cargo and crew are reconciled with the interest of the coastal State in preserving its asserted rights.

• 10. In the case at hand, the Tribunal opted for a bond or other financial security in the form of a bank guarantee in the amount of US$ 14,000,000. It has been estimated that, as of 8 December 2017, [Page 481] the value of the vessel was US$ 10,500,000.Footnote ⁴ However, the value must be assumed to be lower today, not only owing to the vessel’s immobilization and lack of full maintenance, but also to the mere passage of time (the estimation relates to the value of the vessel 19 months ago). Switzerland states that at the time of the arrest, the vessel had a remaining cargo of 5,075.056 metric tons of gasoil, valued at around US$ 3,060,000.Footnote ⁵ The value of the vessel and the cargo is, of course, not the only factor to be taken into account when fixing the amount of the bond; another component is certainly a sum to ensure the return of the Master and the three officers should the Annex VII arbitral tribunal find that Nigeria has jurisdiction over them. Still, in light of the figures mentioned above and compared with other decisions of the Tribunal (even taking into account that they were rendered some years ago), the amount of the bond is rather high. This holds all the more true as release has been made dependent upon the fulfilment of a further condition, to which I turn now.

Undertaking to ensure return

• 11. As per paragraph 146, sub-paragraph (1)(b),

  Switzerland shall undertake to ensure that the Master and the three officers are available and present at the criminal proceedings in Nigeria, if the Annex VII arbitral tribunal finds that the arrest and detention of the M/T “San Padre Pio”, its cargo and its crew and the exercise of jurisdiction by Nigeria in relation to the event which occurred on 22-23 January 2018 do not constitute a violation of the Convention.

• 12. It seems important to clarify the legal nature of this undertaking and to point to some of the practical and legal limitations inherent in this measure.

• 13. I do agree with the finding in paragraph 141 of the Order that such undertaking “will constitute an obligation binding upon Switzerland under international law”. Indeed, the International Court of Justice held that:

  The ordinary meaning of the word “undertake” is to give a formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a word regularly used in treaties setting out the obligations of the Contracting Parties (…). It is not merely hortatory or purposive.

  (Application of the Convention on the Prevention and Punishment of the Crime [Page 482] of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43, at p. 111, para. 162).

• 14. However, it is equally important to stress that the notion “undertake to ensure” does not entail an obligation of result, but an obligation of conduct. The Seabed Disputes Chamber has had a chance to interpret the notion of “responsibility to ensure” contained in article 139, paragraph 1, of the Convention. It first clarified that in the context of this provision, the term “responsibility” means “obligation” (Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10, at p. 30, para. 65). It then went on to interpret the concept of “responsibility to ensure” (which is, as just seen, equal to an “obligation to ensure”) and stated:

  The sponsoring State’s obligation “to ensure” is not an obligation to achieve, in each and every case, the result that the sponsored contractor complies with the aforementioned obligations. Rather, it is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result. To utilize the terminology current in international law, this obligation may be characterized as an obligation “of conduct” and not “of result”, and as an obligation of “due diligence”.

  (Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10, at p. 41, para. 110) (emphasis added).

  This interpretation was endorsed by the Tribunal in the Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 4, at pp. 38-40, paras. 125-9.

• 15. The case law of the International Court of Justice provides some clarification as to what “parameters operate when assessing whether a State has duly discharged” an obligation of conduct. It has held that the first parameter “is clearly the capacity to influence effectively” the factual situation at hand and specified:

  The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide.

  (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43, at p. 221, para. 430) (emphasis added)

• 16. Finally, the International Court of Justice has clarified the circumstances under which a State, upon which an obligation of conduct is incumbent, engages its international responsibility:

  [Page 483] A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.

  (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43, at p. 221, para. 430) (emphasis added)

• 17. In light of this case law, paragraph 146, sub-paragraph (1)(b), should be read as follows:

  • (a) The undertaking by Switzerland to ensure that the Master and the three officers are available and present at the criminal proceedings in Nigeria is an obligation of conduct—not of result. From this it follows that Switzerland will have duly discharged its obligation if it deploys adequate means, and exercises its best possible efforts to obtain the return of the Master and three officers for legal proceedings in Nigeria.

  • (b) To assess whether Switzerland has done so, it is necessary to take into account, inter alia, the two parameters set out by the International Court of Justice: (i) Switzerland must have the “capacity to influence effectively” the factual situation; and (ii) Switzerland “may only act within the limits permitted by international law”, notably those set by international human rights law. The capacity to influence effectively the factual situation and respect for international law in discharging the obligation are, to a great extent, intertwined. Since Switzerland can only act within the limits of international law, its capacity to effectively influence the return of the Master and three officers may be limited. For example, depending on concrete circumstances as they may present themselves in the future, Switzerland may not be able to forcibly keep the Master and the three officers in Switzerland—notably owing to the rights enshrined in the International Covenant on Civil and Political Rights, to which Switzerland and Nigeria are both parties, specifically the right to leave any country granted by virtue of article 12. As a consequence, Switzerland may lose, at least to a large extent, its capacity to influence effectively the return of the Master and the three officers. Furthermore, should they remain in Switzerland, the principle of non-refoulement may (unless sufficient assurances are provided by Nigeria) prohibit the return of the Master and the three officers to Nigeria. Overall, abiding by international law may, in specific circumstances, imply that Switzerland does not have the capacity to influence effectively the [Page 484] factual situation—that is, to achieve the return of the Master and the three officers to Nigeria.

  • (c) Lastly, Switzerland will not incur liability simply because the return of the Master and three officers can ultimately not be achieved, but rather only for having “manifestly failed” to take all measures to achieve their return. Such “manifest failure” will clearly be absent if Switzerland is unable to ensure the presence and ultimate return of the Master and the three officers because it is abiding by international law, notably international human rights law.

• 18. Overall, this cursory assessment demonstrates that international law may limit Switzerland’s legal and practical leeway (“marge de manoeuvre”) quite considerably. In my view, paragraph 146, sub-paragraph (1)(b), ought to have made explicit that the return of the Master and the three officers must comply with international law. While such qualification of the undertaking is not necessary—for reasons explained above—it would have made the limits inherent in this undertaking more transparent. Furthermore, it would have placed this component of the measure more clearly within the broader context of international law, notably international human rights law.

Introduction

• 1. I have found it difficult to concur with all the findings of the majority of the Tribunal. Consequently, I feel obliged to cast a negative vote on the operative part of the Order.

The Request

• 2. On 21 May 2019 the Swiss Confederation (“Switzerland”) filed an action for the prescription of provisional measures in the dispute between Switzerland and the Federal Republic of Nigeria (“Nigeria”) concerning the M/T “San Padre Pio” (the “San Padre Pio”), her crew and cargo.

• 3. In the Notification of the Request, which is also set out in its final submission, Switzerland requests the Tribunal to prescribe the following provisional measures:

  Nigeria shall immediately take all measures necessary to ensure that the restrictions on the liberty, security and movement of the “San Padre Pio”, [Page 485] her crew and cargo are immediately lifted to allow them to leave Nigeria. In particular, Nigeria shall:

  • (a) enable the “San Padre Pio” to be resupplied and crewed so as to be able to leave, with her cargo, her place of detention and the maritime areas under the jurisdiction of Nigeria and exercise the freedom of navigation to which her flag State, Switzerland, is entitled under the Convention;

  • (b) release the Master and the three other officers of the “San Padre Pio” and allow them to leave the territory and maritime areas under the jurisdiction of Nigeria;

  • (c) suspend all court and administrative proceedings and refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal.

• 4. The final submission of Nigeria is as follows:

  The Federal Republic of Nigeria respectfully requests that the International Tribunal for the Law of the Sea reject all of the Swiss Confederation’s requests for provisional measures.

Factual background

• 5. The “San Padre Pio” (“the vessel”) is a motor tanker flying the flag of Switzerland. It is managed by ABC Maritime (“the owner”) and chartered by Argo Shipping and Trading Company, which is linked to Augusta Energy SA, which is based in Switzerland.

• 6. On 23 January 2018, while the vessel was engaged in a ship-to-ship (“STS”) transfer of gasoil, it was intercepted and arrested by the Nigerian navy. Switzerland submits that the arrest took place about 32 nautical miles from the Nigerian coast, within Nigeria’s exclusive economic zone (“EEZ”).

• 7. On 24 January, the Nigerian navy ordered the vessel to proceed to Port Harcourt and the Nigerian port of Bonny Inner Anchorage, where the sixteen members of the crew were arrested and detained on board the vessel.

• 8. On 9 March 2018, the vessel and crew were handed over to the Nigerian Economic and Financial Crimes Commission (“the EFCC”) for further investigation. On that day the crew members were relocated to a prison, where it is alleged that the detention conditions were “dire”. (In support of this allegation Switzerland referred to an article of 2 February 2018, published in “This Day” in which the Vice President, Professor Yemi Osinbago, revealed that the prison was overcrowded.)

• 9. On 12 March 2018, the EFCC brought charges against the sixteen crew members and the vessel for conspiring to distribute and [Page 486] deal in petroleum products without lawful authority or appropriate licence, and with having done so with respect to the petroleum product on board.

• 10. On 19 March 2018, the charges were amended to apply only to the Master and three officers of the vessel. The charges against the other twelve members of the crew were dropped.

• 11. On 20 March 2018, the twelve members of the crew were allowed to leave prison and return to the vessel. According to Nigeria “upon the crew’s release they were at liberty to go anywhere of their choice without restraint”, their passports were returned and they were allowed to leave Nigeria.

• 12. On 21 March 2018, the Master and officers applied to the Federal High Court for bail. The EFCC did not oppose the application; it asked that bail be granted on conditions that would make the defendants attend their trial.

• 13. On 23 March 2018, the Federal High Court granted bail with the following conditions: that the defendants deposit N10,000,000 (approximately US$ 28,000) and provide a reliable security that could enter into a bond of an equivalent amount and swear to an affidavit of means. Nigeria submitted that the court imposed no restrictions on where the defendants could travel, other than requiring that they “do not travel outside Nigeria without the prior approval or order of the Court”. It appears to me that in the light of the foregoing, it was open to, and the right of, the Master and the three officers to apply to the Federal Court for leave to travel outside Nigeria. Apparently, to date, no such application was made to the Court in Nigeria.

• 14. Nigerian law permits arrested vessels to be released upon the posting of a bond. The owner did not seek to exercise that right. In fact, to date, an application for the release of the vessel has not been made to the Federal Court in Nigeria.

• 15. I will refer to the foregoing later in this opinion to show why the request for provisional measures set out above should not be granted.

• 16. On 24 April 2018, the charges against the officers and vessel were amended to include additional counts for having provided a false bill of lading and false cargo manifest; in particular, that each of those documents had falsely stated that the vessel carried 4,625,865 cubic meters (CBM) of petroleum product although the bill of lading from Lome, Togo, discloses that the cargo actually contained 7,488,484 CBM. Switzerland does not agree with these figures.

• 17. After bail was granted, the Master and three officers were released subject only to the requirement that they remit their [Page 487] passports, which were given to the Deputy Chief Registrar of the Federal High Court for safekeeping. Nigeria submits that the Master and officers were free to leave the vessel whenever they wished and travel within Nigeria. A physician would be permitted to attend to the officers. However, Switzerland did not agree, because there were problems in that on one specified occasion the physician was not allowed permission to visit the vessel and left after a long wait.

• 18. On 26 September 2018, the Nigerian High Court issued an order for forfeiture of the cargo on board the vessel. On 18 October 2018, an application by way of motion was filed with the Federal Court of Nigeria with respect to verification of the cargo on board the vessel; for temporary forfeiture of the cargo to evacuate it to avoid an oil spill; and to sell the cargo and hold the funds in an interest-bearing account until matters were finally determined. In each instance the defendants were allowed their right to be heard. Augusta Energy SA—the charterer of the vessel—moved for an order to extend the time within which discharge of the court order of 26 September 2018 could be sought and to discharge the order of the court for the forfeiture and sale. Augusta claimed it was the owner of the cargo. On 25 January 2019, after hearing arguments from both sides, the court found that there was no merit in the motion and rejected the application. On 12 April 2019, Augusta filed a notice of appeal with the Federal Court of Appeal of Nigeria, asking that the Federal High Court order be set aside (Augusta Energy SA v. Federal Republic of Nigeria (Notice of Appeal (Court of Appeal of Nigeria, 12 April 2019)).

• 19. On 14 May 2019, Augusta filed a motion seeking to enjoin the cargo’s sale and an order staying the execution of the ruling of the Federal High Court. This motion is pending before the Federal Court of Appeal.

• 20. Notwithstanding the foregoing, Switzerland, the flag State of the vessel, commenced proceedings for provisional measures (set out above) substantially involving matters similar to those before the Nigerian courts and could be determined by the said courts.

• 21. In other words, the essence of the request for provisional measures is that the Tribunal should prescribe measures in a dispute where the domestic courts of Nigeria and a proposed Annex VII tribunal are being called upon to adjudicate in similar circumstances. The Tribunal is being asked to interfere in the domestic judicial process of a sovereign State that recognizes the independence of the judiciary in its constitution.

[Page 488] The dispute

• 22. The dispute between Switzerland and Nigeria relates to the interception in Nigeria’s EEZ of a vessel flying the Swiss flag, the arrest of the vessel and her crew and the continuing detention of the vessel, her crew and cargo in Nigeria.

• 23. Switzerland contends that the remaining four members of the crew and the vessel should be released because, inter alia, the safety of the vessel and crew ought to be given paramount consideration.

• 24. At 21:20 local time on 15 April 2019, the vessel was attacked by robbers armed with machine guns, shots were fired and one of the Nigerian navy guards was injured. Apart from that incident, the vessel was struck by another vessel which was drifting in the area, and the cargo on board was damaged. The consequent likelihood of harm being caused to the marine environment by a stationary vessel must also be considered.

• 25. Nigeria states that, since the incident, the navy has deployed more guards on board the vessel and has stationed a gunboat in close proximity to it. Switzerland contends that the vessel has to be maintained during the period of detention, otherwise it will depreciate in value. On the other hand, Nigeria submits that twelve seamen were replaced by a new crew, which is rotated on a regular basis. Further, although the Master and three officers are free to leave the vessel on condition that they remain in Nigeria, they have not made use of that condition. They prefer to remain on board. The question as to whether or not the Master and officers have access to medical examination is also disputed. Switzerland claims that a medical doctor was refused permission to board the vessel. Nigeria maintains that this allegation is not accurate.

• 26. It is also disputed whether Parts V and VII, including articles 56, 57, 87, 92 and 94 of the United Nations Convention on the Law of the Sea (“the Convention”) are applicable and whether Nigeria has breached any of these articles. With respect to its third claim, Switzerland contends that articles 9 and 12 of the International Covenant on Civil and Political Rights (“the ICCPR”) and the Maritime Labour Convention (“the MLC”) were violated by Nigeria. Nigeria affirms that it is not violating the human rights of the officers and crew of the vessel. In any event the rights enshrined in the ICCPR and the MLC belong to individuals and not the State.

• 27. In my opinion a wide and generous interpretation of article 56, paragraph 2, of the Convention does not and cannot include the [Page 489] provisions of the ICCPR and the MLC. The Master and crew are not in jail, they are on bail subject to the condition mentioned earlier that they remain in Nigeria. Switzerland argues that the delay in hearing and determining criminal trials in the Nigerian courts causes psychological harm and distress. However, Nigeria submits that any delay is caused by the respective individuals’ challenging court rulings before a superior court in Nigeria.

• 28. Switzerland argued that the request was urgent. Nigeria submits that in the light of the circumstances the matter is not urgent.

Attempts to resolve the dispute

• 29. It must be noted that before the request for provisional measures was filed at the Tribunal, diplomatic efforts were made to settle the dispute, even while cases and motions were pending before the domestic courts of Nigeria. The domestic proceedings involve applications for bail and hearings for criminal offences.

• 30. The methods used through diplomatic efforts and judicial proceedings are different. The former is based on negotiations and discussions; in judicial proceedings the relevant law is applied to the facts found by the judge or judges (the court), the end result is a judgment. It should be noted that the objective of judicial pronouncements and decisions may at times be at variance with the demands of diplomatic discourse.

• 31. In the instant case, negotiations were not successful. Switzerland sent diplomatic notes to its Nigerian counterparts, including the Director of the EFCC, the Ministry of Industry, Trade and Investment, the Ministry of Foreign Affairs and the Ministry of Justice. However Nigeria did not respond to the notes verbales.

• 32. The Master of the “San Padre Pio”, three crew members and the vessel itself had been charged and indicted. The cases and motions for dismissal were and still are pending before the Nigerian courts. Questions of bail, release of the vessel and crew, and withdrawal of proceedings are still sub judice. However, notwithstanding the foregoing, the Applicant filed this application for provisional measures before the Tribunal, comprising 21 judges, pending the establishment of an Annex VII arbitral tribunal consisting of between three and five members.

• 33. This is an instance where there is, in my view, a conflict between international law and municipal law and an international tribunal and a municipal court, as well as between the procedure at a tribunal and [Page 490] a municipal court. In my view, international law is not superior to municipal law: each is superior in its own sphere. Therefore, in my view, an international tribunal is not superior to a national court. Consequently, it seems apparent that in this case parallel systems are functioning.

• 34. The Tribunal is not an appellate court or a court of judicial review. It functions in accordance with its Statute and its Rules and determines matters accordingly.

Jurisdiction

• 35. It is accepted that

  the Tribunal may prescribe provisional measures under article 290 paragraph 5 of the Convention only if the provisions invoked by the Applicant prima facie appear to afford a basis on which the Annex VII arbitral tribunal could be founded, but need not satisfy itself that the Annex VII has jurisdiction over the dispute submitted to it

  [See Detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures, Order of 25 May 2019, para. 37; “ARA Libertad” (Argentina v. Ghana) Provisional Measures, Order of 15 December 2012, ITLOS Reports 2012, p. 332 at p. 343, para. 60.]

• 36. In my view the significant words are:

  only if the provisions invoked by the Applicant prima facie appear to afford a basis on which the Annex VII arbitral tribunal could be founded, but need not satisfy itself that the Annex VII has jurisdiction over the dispute submitted to it.

• 37. This could only mean that there is no need for the Tribunal to satisfy itself on the question of jurisdiction. The threshold of proof in such circumstances is minimal or low. The words “need not satisfy itself” in this context could be superfluous if given an ordinary meaning but legally it may mean the Tribunal does not have to be convinced even in a limited way. Nevertheless, considering that the degree of satisfaction required is low and perhaps virtually non-existent, in my opinion, in view of the fact that the courts in Nigeria are seized of the proceedings and the cases are ongoing, the Annex VII tribunal would not have prima facie jurisdiction.

• 38. Nigeria stated that “at this stage of the proceedings Nigeria does not object to the jurisdiction of the Annex VII tribunal”. This statement is not specific. In any event Nigeria raised an issue which, in my view, ought to be considered when the question of jurisdiction is [Page 491] determined. I agree that States seeking provisional measures generally support their request with testimonial evidence, often in the form of oral evidence or affidavits.

• 39. It will be convenient to consider similar applications for provisional measures determined by the Tribunal because the following cases were cited and referred to by both sides. The circumstances in each case differ but the applicable principles are the same.

Recent requests for provisional measures before the Tribunal

• 40. In the Three Ukrainian naval vessels case, Ukraine submitted a declaration by counsel for the captain of one of the detained vessels. Russia did not participate in the oral proceedings; therefore, there being no objection or statement to refute the contents, the statement was considered. In the “ARA Libertad” Case, the captain of the vessel made a declaration that was annexed to the request for provisional measures. In the “Arctic Sunrise” Case, (Kingdom of the Netherlands v. Russian Federation) (ITLOS Case No 22, Provisional Measures), which was also cited in the instant case, the Applicant submitted a statement by the vessel’s operator and presented oral evidence at the hearing. This evidence was not challenged because Russia did not participate in the hearing. Switzerland presented no evidence, either in written form, on affidavit or from witnesses. During the oral submissions, statements were made by counsel with respect to the vessel’s owner, the charterer and the master. However, the statements or allegations mentioned by counsel were not supported by evidence. It is accepted that the submissions of counsel do not constitute evidence of facts. Where the need for evidence to support claims for such a request is “limited” and the threshold regarding the standard of proof “low”, some supporting evidence would have been helpful. More so in the light of the evidence on affidavits submitted by Nigeria. The submissions of counsel though articulate are not evidence on matters of fact.

• 41. The “Enrica Lexie” case must be distinguished from the foregoing. In that case the marines were charged with murder, a non-bailable offence in India. However, the Supreme Court of India in those circumstances was indulgent in allowing one of the defendants, on special grounds, to return to Italy pending trial and the other to remain at the residence of the ambassador of Italy owing, among other things, to political and diplomatic intervention as well as the fact that the marines were also charged under Italian law. It is crucial to note that in the “Enrica Lexie” case, the Supreme Court of India maintained [Page 492] its jurisdiction and upon request made the orders. In the instant case the cases in the criminal courts of Nigeria are ongoing. The defendants applied for and received bail with conditions.

• 42. In the application of Ukraine (Case No 26), the officers on the vessel were charged with criminal offences and the matters are pending before the Russian courts. There was no evidence of applications for bail before the Russian courts.

• 43. Another factor for consideration before we can arrive at a conclusion is the fact that the essence of Switzerland’s claim is that the Tribunal should prescribe measures in a dispute where the Tribunal and an Annex VII tribunal and the domestic courts of Nigeria are being asked to adjudicate in this dispute.

• 44. More importantly, the Tribunal is being asked to interfere in the work and functioning of the Nigerian domestic process which, according to Nigeria—and I agree—“is engaged in the important task of maintaining law and order and combating a form of criminality that is dangerous to Nigeria as well as its neighbouring States in the Gulf of Guinea”.

• 45. This case hinges on whether the Tribunal can make an order that interferes with the jurisdiction of a national court where judicial proceedings for criminal offences are pending and due to be heard and determined. The integrity of the Nigerian court system must be respected.

The evidence

• 46. Switzerland did not call any witnesses to testify and it provided no affidavits to support the contentions and allegations in the oral submissions. Switzerland submitted documentary evidence in 20 tabs which were given to the Tribunal and distributed to the judges for ease of reference during the oral submissions. Nigeria did not object to the submission of the documents.

• 47. Nigeria presented affidavits of Rear Admiral Ibikunle Taiwo Olaiya, Lieutenant Mohammed Ibrahim Hanifa, and Captain Kolawole Olumide Oguntuga.

• 48. In his affidavit, Admiral Olaiya referred to the route taken by the “San Padre Pio” and the fact that on that route vessels were engaged in “round tripping”, a method of distributing illegally refined oil. Owing to a pattern of observed suspicious activity, including the switching-off of its automatic identification system (“AIS”) signal and travel between sites associated with the illicit trade in petroleum products, the vessel was placed on a list of vessels of interest. The following paragraphs are important:

  • [Page 493] 27. That upon being encountered by the NNS Sagbama while undertaking bunkering at the Odudu Oil Field and requested to provide copies of the required permits, M/T San Padre Pio was unable to provide the necessary documentation and was arrested.

  • 28. That the petroleum products that the M/T San Padre Pio was bunkering was subsequently determined by testing conducted by the Department of Petroleum Resources to be sub-standard.

• 49. It must be noted that Switzerland categorically denied that the vessel ever turned off its AIS. Counsel said that “the Master had in her terms denied having done so”.

• 50. The submissions of counsel are not evidence. In any event, that they were told to counsel is a form of hearsay. I must add that the Master and officers could have given sworn affidavits to their lawyers to support the submissions of counsel. The Master and crew had given written statements to the legal officer. The proceedings reflect that the officers and crew and the owner and charterer were represented by counsel in the matters before the Nigerian courts.

• 51. In his affidavit Lieutenant Mohammed Ibrahim Hanifa stated, inter alia:

  • 4. That on 22 January 2018 at about 1300, my ship the NNS Sagbama received an information from the headquarters, Falcon Eye Centre, informing us that the M/T San Padre Pio (the vessel with IMO No 9610339) was in the vicinity.

  • 5. That the NNS Sagbama encountered the vessel San Padre Pio at the Odudu Oil Field.

  • 6. That when we arrived M/T San Padre Pio location that night on 22 January 2018 at about 2000 the vessel was conducting a ship-to-ship bunkering transfer with the M/T Lahoma.

  • 7. That about 0300 on 23 January 2018 M/T Lahoma disengaged from M/T San Padre Pio and M/T Energy Scout came alongside the San Padre Pio and began a ship-to-ship bunkering transfer.

  • 8. That in order to engage in bunkering transfers in Nigeria’s EEZ, ships like the M/T San Padre Pio must have (1) a bill of lading; (2) the Nigerian Navy ship Pathfinder verification certificate to receive/load and discharge approved products; (3) a Nigerian Maritime Administration and Safety Agency (NIMASA) cabotage trade licence; and a Department of Petroleum Resources (DPR) licence.

  • …

  • 10. That the Nigerian Navy Ship PATHFINDER Verification Certificate states that such operations are “to be conducted between Sunrise and Sunset” and that “If any of the vessels engaged is found violating above conditions, it should be arrested and prosecuted”.

  • 11. That about 1300 on 23 January 2018, without having received additional documentation, we escorted the M/T San Padre Pio to Forward Operating base Bonny for further investigation.

  • [Page 494] 12. That on 24 January 2018 the San Padre Pio was handed over to the Forward Operating base Bonny authorities.

• 52. Paragraph 13 states that the vessel was not boarded; and, paragraph 14 states that, when a vessel is boarded, a form is given to the captain for completion. No such form was given to the captain of the vessel.

• 53. I have set out the above because it is the evidence of an officer who was involved in the arrest of the vessel.

• 54. In a comprehensive and thorough affidavit, the legal officer of the EFCC set out the allegations giving rise to the arrest of the vessel: (1) it did not have the required approval licence from the NIMASA and Ministry of Resources; (2) the agent of the vessel presented the aforementioned certificate the day after the arrest of the vessel; (3) the manner and conduct relative to the arrest of the vessel and crew; (4) the Master of the vessel made both hand- and typewritten statements; the other 15 members made written statements. Another important matter mentioned is the fact that the owners of the vessel did not at any time apply for the vessel’s release. While the investigation was ongoing and charges filed in court against the Master and three other crew members, the law firm PUNUKA Attorneys informed the EFCC that it represented the charterers of the vessel and that the petroleum products on board the vessel were not of local origin but had been imported from abroad, and it appended correspondence relating to the matter. Among other relevant matters, it stated that, after the Master of the vessel and the officers had been granted bail, they returned to the vessel and voluntarily returned for court hearings; that on some occasions they stay in hotels of their choosing. The other twelve crew members were released on 18 March 2018 and their passports were returned through their lawyer.

Assessment of evidence

• 55. Jurisprudence of some national and international bodies provides that provisional measures (which are similar to injunctive relief in most national courts) are discretionary in nature and are only granted in exceptional and urgent circumstances specifically to guarantee, even temporarily, the rights of the applicant party. When there is a request for provisional measures, the Tribunal will not and should not deal with the merits of the case; to do so would be to usurp the function of the Annex VII tribunal, and, in the instant case, the function of the Nigerian domestic courts. Further, in an application for provisional [Page 495] measures which is heard inter partes, the parties would not have had the time nor would they, as in this case, have been able to provide all the evidence to prove or to refute the allegations. Consequently, the Tribunal has to undertake a restricted examination of the facts presented to determine the applicability of the rights claimed and whether in applying a low threshold of proof, the rights are applicable and the measures requested should be granted.

• 56. Among the documents were photographs of the vessel and of an allegedly abandoned vessel, the “Anuket Emerald”, that Switzerland alleges was abandoned and drifted to shore. Referring to the photograph, Nigeria alleges that the vessel was not abandoned and lay at anchor. The other photograph is that of the “San Padre Pio”, apparently taken in 2016. It was referred to in the context of the vessel having overhead light for night-time STS bunkering.

• 57. It is accepted that the criteria for admitting photographs as persuasive evidence is that the photograph must be relevant. That of the “San Padre Pio” is not relevant to the date of arrest and detention. If it was taken about two years before its arrest, it could have had the equipment on board. Counsel for Nigeria did not object; in the circumstances it is admitted as evidence of the vessel’s appearance at or about the time of its arrest. The photo of the “Anuket Emerald” has, in my view, two interpretations. Nigeria says that it shows an anchor chain leading into the water. Switzerland argues that it shows the vessel close to shore and apparently abandoned, such that it could have drifted into the “San Padre Pio”. In the absence of the photographer’s evidence, I find it difficult to draw a conclusion one way or the other. As a result, the photo is not reliable and its weight in support of the contention of either side is negligible and is not proof of the allegation.

• 58. Switzerland did not provide any affidavits in response to those of Nigeria; nor did it ask leave to cross-examine the deponents, one of whom was in court for the hearing. Counsel asserts that the Tribunal should be cautious and consider that declarations on affidavit are made by State officials, who may have an interest in the outcome of the proceedings. They should also consider whether the contents of the affidavits relate to the existence of the facts. In the absence of evidence to the contrary, it must be accepted that the proper method was used in taking the affidavits. Nevertheless, consideration of current jurisprudence suggests that in the absence of cross-examination and affidavits in evidence to refute what is deposed, the contents should still be carefully examined when evidential value is considered.

• 59. It is accepted that affidavits are a unique form of evidence, frequently used in common law jurisdictions (such as Nigeria). The [Page 496] evidence is given before a commissioner of affidavits or a notary public, as in the instant case, recorded by him/her in writing, and prepared in accordance with the principles of the national law of the deponent. In other words an affidavit is testimony in written form.

• 60. The deponents were clear and specific. Their accounts were of events that they personally observed. Realising that it is incumbent upon a judge to assess with caution and analyse the evidence carefully, I found that the evidence on affidavit substantially supported the submissions of counsel on the relevant issue. The deponents are officers of the Nigerian navy and administrative offices. They were the persons who were involved in the arrest and detention of the vessel and crew. Their depositions were taken in accordance with the law and the deponents would have been cautioned that, if their depositions were untrue, they could be charged with perjury. In my opinion the affidavits provide vital evidence contemporaneous with the period in question. Therefore, even if a high threshold of proof was applied, I am satisfied that they were truthful.

Urgency

• 61. Switzerland contends that there are several reasons why the situation is urgent. It maintains that

  By intercepting the “San Padre Pio” in its exclusive zone, about 32 nm off the coast and outside any safety zone which Nigeria could have established under article 60 paragraph 4, of the Convention, Nigeria hampered the freedom of movement of the vessel. Accordingly it infringed Switzerland’s freedom of navigation.

• 62. According to Switzerland, Nigeria hindered and is delaying the possibility for the vessel to carry out bunkering activities, which has been recognized by the Tribunal as being part of the freedom of navigation (see the “Norstar” Case (Panama v. Italy)); Nigeria did not obtain the consent of the flag State with respect to the detention of the cargo and crew, who are still detained; Nigeria has failed to have due regard under article 56, paragraph 2, of the Convention; and Nigeria never mentioned protection of the environment. Having regard to the foregoing and other reasons advanced, the rights claimed are plausible.

• 63. Nigeria disagrees and submits that none of the rights claimed by Switzerland are only plausible if applicable to the factual situation in question. Nigeria contends that it was exercising its right to enforce its laws and regulations concerning the conservation and management of [Page 497] the non-living resources in its EEZ when it arrested and initiated judicial proceedings against the vessel and its crew. These judicial proceedings are in progress.

• 64. According to Nigeria—and I agree—articles 208 and 214 of the Convention impose on Nigeria the obligation to enforce its laws and regulations concerning pollution from seabed activities in its EEZ. Switzerland contends that flag State jurisdiction is applicable. Article 94, paragraph 6 provides that:

  • 6. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action to remedy the situation.

  (my emphasis)

• 65. In my opinion, the word “may” gives a coastal State, in this case, Nigeria, discretion. It is not compulsory to inform the flag State. It will certainly depend on the circumstances. In this case, the coastal State had to act immediately. Nigeria submits, and I agree, that

  the principle of exclusive flag State jurisdiction does not apply in this case. If it did, then the sovereign and exclusive rights of the coastal State enshrined in Part V of the Convention could never be enforced against foreign flagged vessels without the consent of the flag State and that would make law enforcement in an environment like the Gulf of Guinea impossible.

• 66. The cases against the Master, the members of the crew and the vessel are pending. Counsel for Switzerland said in part:

  the proceedings instituted before the Nigerian courts against the vessel, its cargo and the crew are continuing. Furthermore, hearings have been postponed multiple times and apparently are set to be heard by the end of the year.

• 67. I find that the Nigerian courts are functioning in accordance with due process and the rule of law. Upon application, the Master and three crew members were granted conditional bail. In the circumstances, the owner can apply to the relevant court for bail for the vessel. The prosecutor applied to the court to seize the cargo, confiscate it and sell the cargo. If the application is granted, the funds will be placed in an interest-bearing account and will be disposed of in accordance with the order of the court at the end of the judicial proceedings. The owner has appealed. The appeal is pending. It is apparent that the proceedings against the vessel, its cargo and the crew are an integral part of the criminal proceedings and should be determined before the prosecution can proceed with the cases against the defendants. Therefore, in my opinion, the Nigerian courts are functioning in accordance with due [Page 498] process. In any event it seems as though the proceedings before the Nigerian courts would be completed before the Annex VII tribunal is established and commences functioning.

• 68. There is no evidence of delay in the criminal proceedings. It is accepted that, bearing in mind the principle that the prosecution must prove their case beyond reasonable doubt, and the presumption of innocence, proceedings before criminal courts require time.

• 69. Switzerland submits that the matter is urgent because the Master and three officers have been in custody pending trial. Although they have been granted bail, they are not permitted to leave Nigeria; they are not permitted visitors; they are deprived of being with their families; they are confined to the vessel in an area fraught with danger from pirates; and the hearing in the national court is taking a long time.

• 70. The cargo on board is deteriorating and the cargo and vessel itself, if not removed and maintained, could cause damage to the environment.

• 71. Nigeria argues that since the vessel was attacked by pirates, more guards have been assigned to the vessel and a gunboat is always near it to safeguard the vessel and those on board. In this context, paragraph 129 of the Order refers to a report on piracy and armed robbery against ships. It reads:

  The Tribunal further notes the report on piracy and armed robbery against ships (1 January-31 March 2019) of the International Chamber of Commerce—International Maritime Bureau, which states that the Gulf of Guinea accounts for 22 of 38 incidents of piracy and armed (robbery) against ships for the first quarter of 2019 and that 14 incidents are recorded for Nigeria.

• 72. It is argued that, under the Rules of the Tribunal, the Tribunal may seek elucidation or clarification on an issue by referring to reports of recognized international organizations. The reference was considered after the close of proceedings and neither Switzerland nor Nigeria had an opportunity to comment or refute. Nigeria led evidence on affidavit that measures to strengthen the security of the vessel were taken by the Nigerian authorities by deploying extra guards and having a naval gunboat in the vicinity of the vessel. On the basis of the report and the evidence provided by Nigeria, with respect and regretfully, I must consider this report as speculation in relation to the facts in the case, specifically in relation to the vessel. In the circumstances, I am convinced that the M/T “San Padre Pio”, its crew and cargo are not vulnerable.

• [Page 499] 73. The vessel is maintained because, since the twelve members were released, the crew has been changed regularly.

• 74. Any delay complained of is as a result of the appeals by the defendants. The defendants are on bail and can leave the vessel whenever they choose to do so as long as they do not leave Nigeria.

• 75. Under Nigerian law, a bail application can be made on behalf of the vessel. Further, it is accepted that it is the right of a defendant to apply to the court for a reduction of bail and to reconsider the condition applicable to the granting of bail.

• 76. For the above reasons I find that the matter is not urgent and the rights claimed by Switzerland are not plausible.

• 77. In order to summarize, for the above reasons, I find that having regard to the submissions of counsel, the legal arguments and the evidence presented, the rights claimed by Switzerland are not plausible; the absence of urgency is apparent because Switzerland took about sixteen months to initiate this application, during which time the Nigerian courts dealt with relevant applications to ensure fairness to all the Parties, whereby rights were preserved. Further, and most importantly, if the provisional measures are granted it would result in interference in the Nigerian judicial system and irreparable harm to Nigeria’s sovereign right to enforce its laws against the defendants, who are lawfully charged and indicted and are currently being prosecuted for violation of Nigerian laws and regulations. In these circumstances the Request is declined.

[Page 500] Requirements for provisional measures

• 2. Under the Convention, there are two procedures for the prescription of provisional measures. The first aspect of provisional measures is to be found in article 290, paragraph 1. Under that provision, a court or tribunal (including the International Tribunal for the Law of the Sea; hereinafter “the Tribunal”) may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the rights of the parties to the dispute. The term “may” implies discretion for the court or tribunal as to whether or not such measures should be prescribed. The court or tribunal has to consider whether it is appropriate under the circumstances to prescribe the measures. The circumstances differ from case to case. Even when the requirements for the prescription of provisional measures are established—namely, prima facie jurisdiction, plausibility and urgency—judicial discretion and propriety have to be applied. Thus, in the ten provisional measures cases which have come before it, the Tribunal has prescribed measures in some cases while refraining from doing so in others. In some cases the Tribunal has exercised the provision of its Rules that gives it competence to prescribe measures different in whole or in part from those requested.

• 3. The second aspect for applying provisional measures is under article 290, paragraph 5, which is the one that has been invoked by the Applicant in the present case. By this provision, the Tribunal may prescribe provisional measures if it considers that prima facie the Annex VII arbitral tribunal would have jurisdiction and that the urgency of the situation so requires. While paragraphs 1 and 5 of article 290 have to be read together, the two provisions have some differences. Under paragraph 1, a court or tribunal has competence to determine both prima facie jurisdiction for provisional measures and substantive jurisdiction for the merits of the dispute. Under paragraph 5, the Tribunal, as in the present case, can prescribe provisional measures in a dispute that has been submitted to an Annex VII arbitral tribunal. This calls for caution and judicial prudence, so as not to cause prejudice to the rights of either party or to prejudge the merits of the case. In my view, given the above understanding of the two paragraphs, the need for restraint in prescribing provisional measures is greater under paragraph 5 than under paragraph 1.

The posting of a bond

• 4. Regrettably, the Tribunal has reverted to the invocation of the posting of a bond for the second time in its case law. The first time was [Page 501] in the “Arctic Sunrise” case in 2013. This trend could lead to the permanent incorporation of prompt release mechanisms into provisional measures procedures. In my view it is a regrettable trend. This is because there are important differences between the two procedures. In this regard I wish to refer to the Separate Opinion of Judge Jesus in the “Arctic Sunrise” case. He expressed reservations as to the procedure, which was being invoked for the first time. He saw the release of a vessel upon the posting of a bond as “a back-door” prompt release remedy. I share this concern. In fact the Respondent State in the present case was prescient when it observed towards the end of its first round of oral argument that: “It may be worth noting in passing that this is not a prompt release case and thus not a case where the State has an obligation under the Convention to release the vessel and allow the crew to depart.”Footnote ³

• 5. The posting of a bond is appropriate for prompt release cases under article 292 of the Convention. That article provides for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security. It is a mandatory procedure which requires a State to release a detained vessel flying the flag of another State. In accordance with article 73, paragraph 3, of the Convention, imprisonment and corporal punishment are prohibited as penalties for fishing offences. Only monetary terms are envisaged for prompt release cases. Similar conditions apply in situations of marine pollution pursuant to articles 220 and 226 of the Convention. These requirements that only monetary penalties be imposed do not apply in provisional measures cases. In the present case, the Master and three officers accused of violating Nigeria’s law may be sentenced to imprisonment. Thus, by ordering the release of the crew upon the posting of a bond, Nigeria’s rights are prejudiced if the accused crew members of the M/T “San Padre Pio” do not return.

• 6. Another difference between prompt release and provisional measures proceedings is that the prompt release proceedings provided for in article 292 are not incidental to the merits as the proceedings for provisional measures set out in article 290 are. Prompt release proceedings are separate and independent. This important difference was spelled out in the first ITLOS case, that of the M/V “Saiga”.Footnote ⁴ When a court or tribunal undertakes a judicial function for provisional measures proceedings, it does so in an incidental manner subject to [Page 502] the merits being dealt with either by itself or by another court or tribunal, as is the case with our Tribunal.

• 7. The Tribunal states that, under article 290 of the Convention, it may prescribe a bond or other financial security as a provisional measure for the release of the vessel and the persons detained.Footnote ⁵ The Tribunal cites its Order in the “Arctic Sunrise” case. While it is doubtful that such broad competence exists under the article cited, at least in the “Arctic Sunrise” case the Netherlands had inquired from the Russian Federation whether the release of the vessel and its crew would be facilitated by the posting of a bond or other financial security. In the present case, no such request for the posting of a bond was made. The majority in the present case points out that the release of a vessel upon the posting of a bond is an option available under the Nigerian administrative procedure, as stated by counsel for Nigeria during the hearing in response to a question by the Tribunal.Footnote ⁶ It is true that counsel for Nigeria confirmed that a vessel can be released under the administrative procedure upon the posting of a bond. He added, however, that the owner of the M/T “San Padre Pio” decided not to pursue this avenue of obtaining the vessel’s release upon the posting of a bond.Footnote ⁷

Assurances

• 8. The majority is of the view that Nigeria needs to be assured unequivocally, through an undertaking, that the Master and the three officers will be available and present at the criminal proceedings in Nigeria, if the Annex VII arbitral tribunal finds that the arrest and detention of the M/T “San Padre Pio”, its cargo and its crew and the exercise of jurisdiction by Nigeria in relation to the events of January 2018 do not constitute a violation of the Convention. The Tribunal prescribes that Switzerland “shall undertake to ensure that the Master and three officers are available and present at the criminal proceedings in Nigeria”. Such an undertaking will “constitute an obligation binding upon Switzerland under international law”.Footnote ⁸

• 9. While I understand the majority to be well-intentioned in prescribing such assurances,Footnote ⁹ I wish to express my misgivings about the reality and practicability of such a step. Let me start by observing [Page 503] that the issue of assurances was invoked in the provisional measures phase in the “Enrica Lexie” case between Italy and India. In that case, the Tribunal placed on record assurances and undertakings which were given by both Parties during the hearing.Footnote ¹⁰ Also, in its Order on the request for the prescription of provisional measures of 29 April 2016, the Annex VII arbitral tribunal in the “Enrica Lexie” case ordered assurances similar to those ordered by the Tribunal in the present case. However, the Parties to the arbitration had, before the arbitral tribunal took any action about assurances, given assurances to the arbitral tribunal that bail conditions for the marines would be relaxed. Furthermore, the arraigned marines would remain under the authority of the Supreme Court of India during the period before the relevant award. Italy had also offered and renewed the solemn undertaking for the return of the marines to India. Thus, in that case, there was a watertight arrangement between the Parties before the arbitral tribunal issued its order about assurances and undertakings.

• 10. Regrettably this is not the situation in the present case. Just as in the case of posting a bond, the Parties did not avail themselves of the opportunity provided by both the written and oral pleadings to reach an understanding on assurances. On the contrary, during the oral hearing, the Applicant downplayed the assurances which were given by the Respondent concerning bail. The Agent of the Applicant on the second day of the oral hearing accused Nigeria of

  not complying with bail conditions in the past … how can we have any confidence in their purported new assurances? This is the more true, given that the diplomatic note in which these purported assurances are to be found only arrived this week … Now the presumption of good faith is important, but it should not run counter to the facts.Footnote ¹¹

  In clarification of a statement made by Switzerland on the first day of the oral hearing that “[I]f need be, certain procedures exist for securing the return of the Ukrainian officers”,Footnote ¹² counsel, in response to the Tribunal’s third question, stated, on the second day of the oral hearing, that he had been quite cautious in his statement the previous day. He added that, if the Tribunal were minded to devise ways to ensure that the measures prescribed do not prejudice Nigeria’s rights, it could explore the matter with the Nigerian authorities and perhaps with the State of nationality of the Master and three officers. Counsel [Page 504] for Switzerland added that bail conditions could be adjusted to allow for the departure of the Master and the three officers from Nigeria.

• 11. I have cited the above details to show the difficulty Switzerland faced during the oral pleading concerning the issue of assurances. The problem will still face the Applicant in the implementation of the measure prescribed in the dispositif concerning assurances about the return of the crew members to face trial should the Annex VII arbitral tribunal so determine. In spite of all the good faith on the part of Switzerland, it will be difficult to guarantee the availability of the four defendants. The main reason is that the four defendants are not Swiss nationals. They are nationals of Ukraine, which is not a party to the present proceedings before the Tribunal. The defendants are not even residents of Switzerland. It is difficult for Switzerland to ensure their return to face criminal charges in Nigeria. An understanding between the Parties prior to the Tribunal pronouncing itself on the provisional measures would have facilitated the smooth implementation of the assurances and undertakings. It is noted that the manner in which the majority has formulated the bond and assurances in the dispositif is not helpful. Paragraph 1 of the dispositif is a package consisting of the bond and the assurances to be given by Switzerland to Nigeria. Regarding the bond, it is not clear what amount is for the vessel, the cargo and the crew. This ambiguity could create problems. The assurances are a unilateral declaration by Switzerland. The Tribunal considers this undertaking to be an obligation binding upon Switzerland under international law. In this regard, it is hoped that the cooperation called for in the formulation and implementation of the undertaking between the Parties will materialize on the basis of the good relations between Nigeria and Switzerland.

Urgency

• 12. The majority finds that there is a real and imminent risk of irreparable prejudice to the rights of Switzerland pending the constitution and functioning of the Annex VII arbitral tribunal. They find that the urgency of the situation requires the prescription of provisional measures under article 290, paragraph 5, of the Convention.Footnote ¹³ This finding is the main reason for my disagreement with the majority. I am of the view that there is no such imminent risk of irreparable prejudice.

• 13. Urgency is one of the two requirements for provisional measures provided for in article 290, paragraph 5, of the Convention. Urgency is [Page 505] defined as “the need to avert real and imminent risk that irreparable prejudice may be caused to rights at issue before the final decision is delivered”.Footnote ¹⁴ Urgency is a cardinal requirement before provisional measures can be prescribed. While article 290, paragraph 5, of the Convention specifically spells out urgency, this is not the case under paragraph 1 of the same article. Nevertheless, by their very nature, provisional measures are urgent and thus they are implied under paragraph 1. This interpretation is buttressed by the practice of the International Court of Justice (“ICJ”). Even though the ICJ Statute does not specifically mention urgency, the Court has exercised the power to indicate provisional measures only when there is urgency. Thus if there is no urgency, a court or tribunal cannot prescribe provisional measures.

• 14. I am of the view that in the present case there is no urgency. Provisional measures under article 290, paragraph 5, of the Convention are prescribed only when there is a real and imminent risk that irreparable prejudice may be caused to the rights of the parties to the dispute before the constitution and functioning of the Annex VII arbitral tribunal. In the present case the time frame for the constitution of the Annex VII tribunal commenced on 6 May 2019, when the Applicant submitted its Notification and Statement of Claim.Footnote ¹⁵ The arbitral tribunal will be established in the next few months. Owing to the short time frame involved there seems to be no urgency.

• 15. When it is considering the preservation of the rights of the requesting State, the Tribunal has to ensure that the rights of both parties are protected. In this regard I do not agree with the majority when it asserts that the arrest and detention of the M/T “San Padre Pio” and the exercise of criminal jurisdiction against the vessel and its crew by Nigeria could

  irreparably prejudice the rights claimed by Switzerland relating to the freedom of navigation and the exercise of exclusive flag State jurisdiction over the vessel … there is a risk that the prejudice to the rights asserted by Switzerland, with respect to the vessel, cargo and crew—which constitute a unit—may not be repaired by monetary compensation alone.Footnote ¹⁶

  This is a serious assertion which goes to the merits of the case. It also overlooks the fact that, by deciding to release the four defendants, the majority has caused irreparable prejudice to Nigeria’s rights. This [Page 506] prejudice is not compensable in monetary terms either. The sovereign right of Nigeria to exercise its criminal jurisdiction cannot be quantified in monetary terms.

• 16. On the contrary, the alleged harm to the vessel and the cargo is economic and can be wiped out by monetary compensation by an award of the Annex VII arbitral tribunal.Footnote ¹⁷ Here I wish to underscore my view that the release of the Master and the three officers constitutes an irreparable prejudice to Nigeria. There is no imminent risk to them because they are on board the vessel out of their own volition. The Nigerian Federal High Court released them on bail. They are free to stay anywhere in Nigeria. There is no detention of the Master and the three officers as the Applicant argues.Footnote ¹⁸ The surrender of their passports to Nigerian judicial authorities is a standard requirement that applies in many countries in the world. The Applicant also questions Nigeria’s security situation and cites incidents of pirate attacks as reason for the request of release of the four defendants. This concern about the safety of the vessel and the crew has been taken care of by Nigeria’s deploying armed guards on board the vessel since its arrest.Footnote ¹⁹ Hence there is no urgency.

• 17. In this regard I wish to stress my disagreement with the reasoning of the majority concerning the arrest and detention of the four defendants. The majority considers that the restrictions on the liberty and freedom of the Master and three officers for a lengthy period raise humanitarian concerns.Footnote ²⁰ By this observation the majority seems to question the Nigerian legal system, which is functioning well. As stated by Nigeria during the written and oral pleadings, the four defendants are getting a fair trial. They are currently free on bail. The Nigerian judiciary has ensured due process for the defendants. The Applicant has complained about the sixteen months since the accused were first arraigned in the Federal High Court. It is worth pointing out that this time frame is normal in such cases. This period could be compared with that in the M/V “Norstar” case, where it took many years before the trial ended.

• 18. The questioning of the Nigerian legal system has also been linked with the security and safety situation in the Gulf of Guinea. The “piratical’” attack on the M/T “San Padre Pio” is cited as a danger to the crew.Footnote ²¹ The presence of the Nigerian navy officers on board the [Page 507] vessel, which ensured the failure of the attack, is not acknowledged. Instead, the Tribunal cites statistics from the International Chamber of Commerce’s International Maritime Bureau describing incidents of piracy and armed attack against ships.Footnote ²² The majority uses these statistics in order to justify its contention that the vessel, the crew and others on board “appear to remain vulnerable”. This is not justified by the situation on the ground. It is an unfortunate inference to conflate the existence of piracy and armed robbery in the Gulf of Guinea with the security situation in Nigeria. There are many complex problems in the real world. But they do not influence the determination of security and peace in different countries. It would be unfortunate if the existence of the twin problems of piracy and illegal, unreported and unregulated fishing—which is fuelled by the third emerging problem of illegal bunkering—in the Gulf of Guinea were to be used to judge the security and safety of the West African States. The comment about humanitarian concerns is misplaced and should be used with great care. It should apply in serious situations, such as those in the M/V “Louisa” case.

• 19. In conclusion, I wish to state that the majority has failed to follow its jurisprudence in prescribing provisional measures in the present case. The circumstances are such that the Tribunal should not have prescribed the measures requested by Switzerland. As I argued in this opinion, besides the lack of urgency, the measures prescribed will prejudice the merits. The Tribunal should not have prescribed the provisional measures in order not to touch upon issues related to the merits of the case.Footnote ²³ By its action, the Tribunal has prejudiced the rights of Nigeria.