International law of the sea - Appunti caso A

Saiga and its crew, alleging violations of custom regulations.

d) Fishing vessels: the vessels receiving gas oil from the M/V Saiga in the Guinean

Giuseppe Primo Kriti,

EEZ. The Saiga supplied gas oil to 3 fishing vessels: the and the

Eleni S,

both flying the flag of Senegal, and the flying the flag of Greece. All three

fishing vessels were licensed by Guinea to fish in its EEZ.

parties

The to the case are:

a) Saint Vincent and the Grenadines: it’s the applicant. It alleged that Guinea

violated international law, particularly the United Nations Convention on the Law of

the Sea (UNCLOS), by unlawfully arresting the M/V Saiga, detaining its crew,

and failing to release them promptly. The request is for an injunction against

Guinea not to interfere with the freedom of navigation and related rights of

Saint Vincent and the Grenadines.

b) Republic of Guinea: it’s the respondent. It claimed that the M/V Saiga was

involved in illicit activities by supplying fuel to fishing vessels without proper

authorization within Guinea's EEZ, justifying the detention.

2 . What are the movements of the M/V SAIGA (and the maritime zones

touched by her) in the relevant period of time that are pertinent to the

case?

On 24 October 1997, the Saiga left Dakar, Senegal, carrying gas oil intended for

supply to fishing vessels operating off the coast of West Africa. On 27 October, the

vessel entered the EEZ of Guinea, where it conducted bunkering operations. The EEZ

extends 200 nautical miles from a country's coast, where the coastal state has special

rights regarding the exploration and use of marine resources. The Saiga supplied gas

Giuseppe Primo Kriti,

oil to 3 fishing vessels: the and the both flying the flag of

Eleni S,

Senegal, and the flying the flag of Greece. All three fishing vessels were

licensed by Guinea to fish in its EEZ. The Saiga then sailed in a southerly direction

to supply gas oil to other fishing vessels at a pre-arranged place. Upon instructions

from the owner of the cargo in Geneva, it later changed course and sailed towards

another location beyond the southern border of the EEZ of Guinea.

The day of the incident and arrest was October 28. The vessel was near the

southern limit of Guinea’s EEZ, off the coast of West Africa. While conducting

bunkering operations, the M/V Saiga was boarded by Guinean customs and naval

authorities. On the same day, the ship and its crew were brought to Conakry, Guinea,

where its Master was detained.

3. What are the measures taken by the Guinean authorities and what are

the legal basis for such measures?

On October 28, Guinean customs and naval officers boarded the M/V Saiga

while it was engaged in bunkering operations within Guinea’s EEZ. Following the

inspection, the Guinean authorities detained the M/V Saiga. The detention was based

on the allegation that the vessel was supplying fuel to fishing vessels within the

EEZ without proper authorization, which Guinea claimed was a violation of its

customs laws. The crew members, including the Ukrainian master of the vessel,

were arrested. An account of the circumstances of the arrest was drawn up by

“Procès-Verbal” “PV29”,

Guinean customs authorities in a bearing the designation

which contains a statement of the Master obtained by interrogation by the Guinean

“Conclusions presented in the name of the Customs

authorities. A document,

administration by the Head of the National Mobile Customs Brigade ”, set out the basis

of the action against the Master. On 13 November, Saint Vincent and the

Grenadines submitted a request for the prompt release of the Saiga. The

Judgement ordered that Guinea promptly release the Saiga and its crew. On

17 November, judgement was rendered by the Tribunal of First Instance in

articles 111 and 242

Conakry against the Master. The tribunal cited the of the

articles 361 and 363 of the Penal Code of Guinea art.40 of the

Convention, ,

Merchant Marine Code of the Customs Code of Guinea arts.1 and 8 of

and

Law L/94/007/CTRN of 15 March 1994 concerning the fight against fraud

covering the import, purchase and sale of fuel in the Republic of Guinea . The

imported, without declaring it,

charge against the Master was that he had “

merchandise that is taxable on entering national Guinean territory, in this case

diesel oil, and that he refused to comply with injunctions by Agents of the

Guinean Navy, thus committing the crimes of contraband, fraud and tax

evasion ”. The tribunal found the Master guilty as charged and imposed on him a

fine. It also ordered the confiscation of the vessel and its cargo as a guarantee

for payment of the penalty. The Master appealed to the Court of Appeal but it found

illegal import, buying and selling of fuel in

the Master guilty of the offence of “

the Republic of Guinea ”. The Court of Appeal imposed a suspended sentence of 6

months imprisonment on the Master, a fine and ordered that all fees and expense be

at his expense.

On 11 March 1998, the Tribunal delivered the order prescribing provisional

measures. Prior to the issue of its order, the Tribunal was informed that the Saiga

had been released from detention and had arrived safely in Dakar, Senegal.

Procedural aspects

4. Two cases … how many phases? How can the various legal steps taken

by St. Vincent and the Grenadines before ITLOS can be succinctly

described?

Phases of the “M/V Saiga” cases:

a) Case no.1 (Provisional measures)

Phase 1 Request for provisional measures

- :

The application was filled on November 13, 1997. Saint Vincent and the Grenadines

filed an application for provisional measures before the ITLOS. The legal basis is

art.290 of UNCLOS art.292 of UNCLOS

consisted by (provisional measures) and

(prompt release of vessels and crews). The objective was to secure the immediate

release of the M/V Saiga and its crew on the grounds that the detention was

unlawful and causing irreparable harm.

b) Case no.2 (Merits)

Phase 1: Initiation of proceedings on the merits

- (December 22, 1997)

Saint Vincent and the Grenadines initiated proceedings on the merits of the case,

challenging the legality of Guinea's actions and seeking reparations.

Phase 2: Written and oral proceedings

-

Both parties submitted written memorials and counter-memorials outlining their

arguments and evidence. ITLOS held hearings where both parties presented their

arguments and responded to questions from the tribunal.

Phase 3: Judgement on the merits

- (July 1, 1999)

TLOS delivered its judgment, ruling in favor of Saint Vincent and the Grenadines. The

tribunal found that Guinea had violated provisions of UNCLOS and ordered Guinea to

pay compensation for damages.

5. What is the basis for the jurisdiction of ITLOS in the SAIGA (No. 2)

case?

Basis for ITLOS Jurisdiction in the M/V Saiga (No. 2) Case

Article 287 of UNCLOS

1. :

Choice of Procedure: States parties to UNCLOS can choose one or

o more means for the settlement of disputes concerning the

interpretation or application of the Convention. Saint Vincent and the

Grenadines and Guinea are both parties to UNCLOS and have accepted

ITLOS as a forum for dispute resolution.

2. Article 292 of UNCLOS:

Prompt Release of Vessels and Crews: This article allows a state

o party to apply to ITLOS for the prompt release of its vessel and crew when

another state party detains them contrary to the provisions of the

Convention.

Initial Application: Saint Vincent and the Grenadines initially invoked

o this article to secure the release of the M/V Saiga and its crew, leading to

the provisional measures phase (Case No. 1).

3. Article 286 of UNCLOS:

Compulsory Procedures Entailing Binding Decisions: This article

o provides that any dispute concerning the interpretation or

application of the Convention, where no settlement has been reached

by recourse to section 1 of Part XV, shall be submitted at the request

of any party to the dispute to the court or tribunal having

jurisdiction under section 2.

Application to ITLOS: Saint Vincent and the Grenadines submitted the

o dispute to ITLOS under this provision, seeking a binding decision on the

merits of the case (Case No. 2).

Article 288 of UNCLOS

4. :

Jurisdiction: This article states that a court or tribunal referred to in

o Article 287 shall have jurisdiction over any dispute concerning the

interpretation or application of this Convention which is submitted

to it in accordance with Part XV.

Merits Case: ITLOS had jurisdiction over the merits of the case, as

o it concerned the interpretation and application of provisions

related to the enforcement actions taken by Guinea in its

Exclusive Economic Zone (EEZ), the freedom of navigation, and the

prompt release of detained vessels and crews.

Admissibility

6. Guinea raises several objections to the admissibility of the claim: what

is the result that Guinea is hoping to achieve?

Guinea may seek to have the claim dismissed entirely, arguing that it does not

meet the legal criteria for admissibility. If successful, this would effectively end

the legal proceedings and prevent Saint Vincent and the Grenadines from

pursuing its claim further.

Guinea might aim to introduce delays or procedural hurdles in the legal process by

raising objections to admissibility. This tactic could be used to buy time, gather

additional evidence, or strengthen legal arguments in Guinea's favor.

Guinea may dispute the jurisdiction of the International Tribunal for the Law

of the Sea (ITLOS) over certain aspects of the claim. By challenging jurisdiction,

Guinea seeks to limit the tribunal's authority and potentially exclude certain claims

from consideration.

Guinea may raise objections to admissibility to protect its sovereignty, national

interests, and legal position. This could involve asserting its rights under

international law, defending its actions as lawful, and safeguarding its position in the

dispute.

7. One of the objections relates to the registration of the M/V SAIGA: how

is such objection articulated and how is it received by ITLOS?

Guinea raised an objection to the admissibility of the claims made by Saint Vincent

and the Grenadines in connection with the measures taken against the M/V Saiga by

Guinea. The objection centered around the contention that Saint Vincent and the

Grenadines lacked legal standing to bring these claims due to the alleged

invalid registration of the M/V Saiga under the flag of Saint Vincent and the

Grenadines at the time of its arrest. Guinea argued that the ship was not validly

registered under the flag of Saint Vincent and the Grenadines during a specific period,

citing the expiration of the Provisional Certificate of Registration and the issuance of

the Permanent Certificate of Registration. According to Guinea, this gap in registration

meant that the M/V Saiga may have been without nationality at the t