INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

YEAR 1999

1 July 1999

List of cases:
No. 2

THE M/V “SAIGA” (No. 2) CASE

(SAINT VINCENT AND THE GRENADINES v. GUINEA)

JUDGMENT

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 TABLE OF CONTENTS

Paragraphs

Introduction 1–30

Factual background 31–39

Jurisdiction 40–45

Objections to challenges to admissibility 46–54

Challenges to admissibility 55–109

Registration of the Saiga 55–74

Genuine link 75–88

Exhaustion of local remedies 89–102

Nationality of claims 103–109

Arrest of the Saiga 110–138

Hot pursuit 139–152

Use of force 153–159

Schedule of summons 160–162

Compliance with the Judgment of 4 December 1997 163–166

Reparation 167–177

Financial security 178–180

Costs 181–182

Operative provisions 183

Annex

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 JUDGMENT

Present: President MENSAH; Vice-President WOLFRUM; Judges ZHAO, CAMINOS,

MAROTTA RANGEL, YANKOV, KOLODKIN, PARK, BAMELA ENGO,
NELSON, CHANDRASEKHARA RAO, AKL, ANDERSON, VUKAS,
WARIOBA, LAING, TREVES, MARSIT, EIRIKSSON, NDIAYE; Registrar
CHITTY.

In the M/V “SAIGA” (No.2) case

between

Saint Vincent and the Grenadines,

represented by

Mr. Carlyle D. Dougan, Q.C., High Commissioner of Saint Vincent and the Grenadines
to the United Kingdom,

as Agent;

Mr. Richard Plender, Q.C., Barrister, London, United Kingdom,

as Deputy Agent and Counsel;

Mr. Carl Joseph, Attorney General and Minister of Justice of Saint Vincent and the
Grenadines,

and

Mr. Yérim Thiam, Advocate, President of the Senegalese Bar, Dakar, Senegal,
Mr. Nicholas Howe, Solicitor, Howe & Co., London, United Kingdom,

as Counsel and Advocates,

and

Guinea,

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represented by

Mr. Hartmut von Brevern, Attorney at Law, Röhreke, Boye, Remé, von Werder,
Hamburg, Germany,

as Agent and Counsel;

Mr. Maurice Zogbélémou Togba, Minister of Justice and Garde des Sceaux of Guinea,

and

Mr. Namankoumba Kouyate, Chargé d’Affaires, Embassy of Guinea, Bonn, Germany,

Mr. Rainer Lagoni, Professor at the University of Hamburg and Director of the Institute
for Maritime Law and Law of the Sea, Hamburg, Germany,
Mr. Mamadi Askia Camara, Director of the Division of Customs Legislation and
Regulation, Conakry, Guinea,
Mr. André Saféla Leno, Judge of the Court of Appeal, Conakry, Guinea,

as Counsel,

THE TRIBUNAL,

composed as above,

after deliberation,

delivers the following Judgment:

Introduction

1. On 13 January 1998, the Agent of Saint Vincent and the Grenadines filed in the Registry of
the Tribunal a Request for the prescription of provisional measures in accordance with
article 290, paragraph 5, of the United Nations Convention on the Law of the Sea (hereinafter
“the Convention”) concerning the arrest and detention of the vessel M/V Saiga (hereinafter “the
Saiga”). The Request was accompanied by a copy of the Notification submitted by Saint
Vincent and the Grenadines to the Republic of Guinea on 22 December 1997 (hereinafter “the
Notification of 22 December 1997”) instituting arbitral proceedings in accordance with
Annex VII to the Convention in respect of a dispute relating to the Saiga. A certified copy of the
Request was sent on the same day by the Registrar of the Tribunal to the Minister for Foreign
Affairs of Guinea in Conakry and also in care of the Ambassador of Guinea to Germany.

2. On 13 January 1998, the Registrar was notified of the appointment of Mr. Bozo Dabinovic,
Commissioner for Maritime Affairs of Saint Vincent and the Grenadines, as Agent of Saint

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Vincent and the Grenadines. On 20 January 1998, the appointment of Mr. Hartmut von Brevern,
Attorney at Law, Hamburg, as Agent of Guinea, was notified to the Registrar.

3. In accordance with article 24, paragraph 3, of the Statute of the Tribunal (hereinafter “the
Statute”), States Parties to the Convention were notified of the Request for the prescription of
provisional measures by a note verbale from the Registrar dated 20 February 1998. Pursuant to
the Agreement on Cooperation and Relationship between the United Nations and the Tribunal,
the Registrar notified the Secretary-General of the United Nations of the Request on
20 February 1998.

4. By a letter dated 20 February 1998, the Agent of Guinea notified the Tribunal of the
Exchange of Letters of the same date (hereinafter “the 1998 Agreement”) constituting an
agreement between Guinea and Saint Vincent and the Grenadines, both of which are parties to
the Convention, to transfer the arbitration proceedings, instituted by Saint Vincent and the
Grenadines by the Notification of 22 December 1997, to the International Tribunal for the Law
of the Sea. The 1998 Agreement is as follows:

Mr. Bozo Dabinovic

Agent and Maritime Commissioner of
St. Vincent and the Grenadines
…
Hamburg, 20.02.1998
…
Upon the instruction of the Government of the Republic of Guinea I am writing to inform
you that the Government has agreed to submit to the jurisdiction of the International
Tribunal for the Law of the Sea in Hamburg the dispute between the two States relating
to the MV “SAIGA”. The Government therefore agrees to the transfer to the
International Tribunal for the Law of the Sea of the arbitration proceedings instituted by
St. Vincent and the Grenadines by Notification of 22 December 1997. You will find
attached hereto written instructions from the Minister of Justice to that effect.

Further to the recent exchange of views between the two Governments, including
through the good offices of the President of the International Tribunal for the Law of the
Sea, the Government of Guinea agrees that submission of the dispute to the International
Tribunal for the Law of the Sea shall include the following conditions:

1. the dispute shall be deemed to have been submitted to the International Tribunal
for the Law of the Sea on the 22 December 1997, the date of the Notification by St.
Vincent and the Grenadines;

2. the written and oral proceedings before the International Tribunal for the Law of
the Sea shall comprise a single phase dealing with all aspects of the merits (including
damages and costs) and the objection as to jurisdiction raised in the Government of
Guinea’s Statement of Response dated 30 January 1998;

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3. the written and oral proceedings shall follow the timetable set out in the Annex
hereto;

4. the International Tribunal for the Law of the Sea shall address all claims for
damages and costs referred to in paragraph 24 of the Notification of 22 December 1997
and shall be entitled to make an award on the legal and other costs incurred by the
successful party in the proceedings before the International Tribunal;

5. the Request for the Prescription of Provisional Measures submitted to the

International Tribunal for the Law of the Sea by St. Vincent and the Grenadines on
13 January 1998, the Statement of Response of the Government of Guinea dated
30 January 1998, and all subsequent documentation submitted by the parties in
connection with the Request shall be considered by the Tribunal as having been
submitted under Article 290, paragraph 1, of the Convention on the Law of the Sea and
Article 89, paragraph 1, of the Rules of the Tribunal.

The agreement of the Government of St. Vincent and the Grenadines to the submission
of the dispute to the International Tribunal on these conditions may be indicated by your
written response to this letter. The two letters shall constitute a legally binding
Agreement (“Agreement by Exchange of Letters”) between the two States to submit the
dispute to the International Tribunal for the Law of the Sea, and shall become effective
immediately. The Republic of Guinea shall submit the Agreement by Exchange of
Letters to the President of the International Tribunal for the Law of the Sea immediately
after its conclusion. Upon confirmation by the President that he has received the
Agreement and that the International Tribunal is prepared to hear the dispute the
arbitration proceedings instituted by the Notification dated 22 December 1997 shall be
considered to have been transferred to the jurisdiction of the International Tribunal for
the Law of the Sea.

I look forward to receiving your early response.

Yours sincerely,

(Signed)
Hartmut von Brevern
Agent of the Republic of Guinea
…
Annex

In re: m/v Saiga

(St. Vincent and the Grenadines v. Republic of Guinea)

AGREED TIMETABLE FOR PROCEEDINGS BEFORE THE

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

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 19 June 1998 Memorial to be filed by St. Vincent and the Grenadines
18 September 1998 Counter-Memorial to be filed by Republic of Guinea
30 October 1998 Reply to be filed by St. Vincent and the Grenadines
11 December 1998 Rejoinder to be filed by Republic of Guinea
February 1999 Oral arguments

_________________________

Mr. Hartmut von Brevern,

…
Hamburg
…
20th February 1998
…
I am in receipt of your letter of 20th February 1998 addressed to Mr. Bozo Dabinovic,
Agent and Maritime Commissioner of St. Vincent and the Grenadines, in relation to the
Arbitration proceedings concerning the M/V “Saiga” as well as the request for
provisional measures.

On behalf of the Government of St. Vincent and the Grenadines I have the honour to
confirm that my Government agrees to the submission of the dispute to the International
Tribunal for the Law of the Sea subject to the conditions set out in your letter of
20th February 1998. A copy of this letter is attached hereto.

I remain Sir,

Yours sincerely,

(Signed)
Carl L. Joseph
Attorney General.
…

5. By Order dated 20 February 1998, the Tribunal decided that “the Notification submitted by
Saint Vincent and the Grenadines on 22 December 1997 instituting proceedings against Guinea
in respect of the M/V ‘Saiga’ shall be deemed to have been duly submitted to the Tribunal on
that date” and that “the request for the prescription of provisional measures … be considered as
having been duly submitted to the Tribunal under article 290, paragraph 1, of the Convention and
article 89, paragraph 1, of the Rules of the Tribunal” (hereinafter “the Rules”). By the same
Order, the case was entered in the List of cases as: The M/V “SAIGA” (No. 2) case.

6. In accordance with articles 59 and 60 of the Rules, the Tribunal, having ascertained the
views of the parties, fixed by Order dated 23 February 1998 the following time-limits for the
filing of pleadings in the case: 19 June 1998 for the Memorial of Saint Vincent and the

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Grenadines, 18 September 1998 for the Counter-Memorial of Guinea, 30 October 1998 for the
Reply of Saint Vincent and the Grenadines and 11 December 1998 for the Rejoinder of Guinea.

7. Notice of the Orders of 20 and 23 February 1998 was communicated to the parties and
copies thereof were subsequently transmitted to them by the Registrar.

8. By Order dated 11 March 1998, the Tribunal decided upon the Request for the prescription
of provisional measures as follows:

1. Unanimously,

Prescribes the following provisional measure under article 290, paragraph 1, of the
Convention:

Guinea shall refrain from taking or enforcing any judicial or administrative measure
against the M/V Saiga, its Master and the other members of the crew, its owners or
operators, in connection with the incidents leading to the arrest and detention of the
vessel on 28 October 1997 and to the subsequent prosecution and conviction of the
Master.

2. Unanimously,

Recommends that Saint Vincent and the Grenadines and Guinea endeavour to find
an arrangement to be applied pending the final decision, and to this end the two States
should ensure that no action is taken by their respective authorities or vessels flying their
flag which might aggravate or extend the dispute submitted to the Tribunal.

3. Unanimously,

Decides that Saint Vincent and the Grenadines and Guinea shall each submit the
initial report referred to in article 95, paragraph 1, of the Rules as soon as possible and
not later than 30 April 1998, and authorizes the President to request such further reports
and information as he may consider appropriate after that date.

4. Unanimously,

Reserves for consideration in its final decision the submission made by Guinea for
costs in the present proceedings.

9. A copy of the Order was transmitted to the parties on 11 March 1998 in accordance with
article 94 of the Rules.

10. States Parties to the Convention were notified of the 1998 Agreement and of the Orders of
20 and 23 February and 11 March 1998, by a note verbale from the Registrar dated
14 April 1998. The Secretary-General of the United Nations was also notified on the same date.

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11. On 19 June 1998, Saint Vincent and the Grenadines transmitted its Memorial by facsimile
to the Tribunal. A copy of the Memorial was sent on 22 June 1998 to the Agent of Guinea. The
original of the Memorial and documents in support were filed in the Registry on 22 June 1998
and on 1 July 1998.

12. By a letter dated 8 September 1998, the Agent of Guinea requested an extension of the
time-limit fixed for the submission of its Counter-Memorial. The President, having ascertained
the views of the parties, by Order of 16 September 1998, extended the time-limit for the
submission of the Counter-Memorial of Guinea to 16 October 1998. Subsequently, after having
ascertained the views of the parties, the Tribunal, by Order of 6 October 1998, extended to
20 November 1998 the time-limit for the filing of the Reply of Saint Vincent and the Grenadines
and to 28 December 1998 the time-limit for the filing of the Rejoinder of Guinea.

13. On 16 October 1998, Guinea submitted its Counter-Memorial to the Tribunal, a copy of
which was transmitted to the Agent of Saint Vincent and the Grenadines on 19 October 1998.
The Reply of Saint Vincent and the Grenadines was filed in the Registry on 20 November 1998.
A copy of the Reply was communicated to the Agent of Guinea on 24 November 1998. The
Rejoinder of Guinea was filed in the Registry on 28 December 1998. A copy of the Rejoinder
was sent to the Agent of Saint Vincent and the Grenadines on 29 December 1998.

14. By Order of 18 January 1999, the President fixed 8 March 1999 as the date for the opening
of the oral proceedings.

15. At a meeting with the representatives of the parties on 4 February 1999, the President
ascertained the views of the parties regarding issues to be addressed by evidence or submissions
during the oral proceedings and requested the parties to complete the documentation in
accordance with article 63, paragraphs 1 and 2, and article 64, paragraph 3, of the Rules.

16. Pursuant to article 72 of the Rules, information regarding witnesses and experts was
submitted by the parties to the Tribunal on 19 February 1999, and on 1 and 4 March 1999.

17. On 1 March 1999, the Registrar was informed of the death of the Agent of Saint Vincent
and the Grenadines, Mr. Bozo Dabinovic, and of the appointment of Mr. Carlyle D. Dougan,
High Commissioner of Saint Vincent and the Grenadines to the United Kingdom, as the Agent of
Saint Vincent and the Grenadines.

18. After the closure of the written proceedings and prior to the opening of the oral
proceedings, the Tribunal held initial deliberations on 1, 2 and 5 March 1999 in accordance with
article 68 of the Rules.

19. At a meeting with representatives of the parties on 2 March 1999, the President ascertained
the views of the parties regarding the procedure for the oral proceedings and the order and timing
of presentation by each of the parties. In accordance with article 76 of the Rules, the President
also indicated to the parties the points or issues which the Tribunal would like them specially to
address.

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20. Prior to the opening of the oral proceedings, the parties submitted documents required
under paragraph 14 of the Guidelines concerning the Preparation and Presentation of Cases
before the Tribunal. The parties also transmitted further documents, in conformity with
article 71 of the Rules. Copies of the documents of each party were communicated to the other
party.

21. From 8 to 20 March 1999, the Tribunal held 18 public sittings. At these sittings the
Tribunal was addressed by the following:

For Saint Vincent and the Grenadines:

Mr. Carlyle D. Dougan,

Mr. Richard Plender,
Mr. Carl Joseph,
Mr. Yérim Thiam,
Mr. Nicholas Howe.

For Guinea:
Mr. Hartmut von Brevern,
Mr. Maurice Zogbélémou Togba,
Mr. Rainer Lagoni,
Mr. Mamadi Askia Camara.

22. At public sittings held on 8, 9 and 10 March 1999, the following witnesses were called by
Saint Vincent and the Grenadines:

Mr. Mikhaylo Alexandrovich Orlov, Master of the Saiga (examined by

Mr. Plender, cross-examined by Mr. von Brevern and Mr. Lagoni, re-examined by Mr. Plender);
Mr. Laszlo Merenyi, Superintendent of Seascot Shipmanagement Ltd. (examined by
Mr. Plender, cross-examined by Mr. von Brevern and Mr. Lagoni, re-examined by Mr. Plender);
Mr. Djibril Niasse, painter on board the Saiga (examined by Mr. Thiam, cross-examined
by Mr. von Brevern and Mr. Lagoni, re-examined by Mr. Thiam);
Mr. Allan Stewart, Managing Director of Seascot Shipmanagement Ltd. (examined by
Mr. Plender, cross-examined by Mr. von Brevern and Mr. Lagoni, re-examined by Mr. Plender).

Mr. Orlov gave evidence in Russian and Mr. Niasse in Wolof. The necessary arrangements were
made for the statements of those witnesses to be interpreted into the official languages of the
Tribunal. In the course of their testimony, Mr. Niasse and Mr. Stewart responded to questions
put to them by the President.

23. On 10 March 1999, after the re-examination of Mr. Stewart by Mr. Plender, the Agent of
Guinea requested permission to address a further question to the witness. The request was
denied by the President, who ruled that further cross-examination was not permitted except
where new matters had been introduced in re-examination.

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24. At public sittings held on 12 and 13 March 1999, the following witnesses were called by
Guinea:

Mr. Léonard Bangoura, Commander, Deputy to the Chief of the National Mobile
Customs Brigade (examined by Mr. von Brevern and Mr. Lagoni, cross-examined by
Mr. Plender and Mr. Thiam, re-examined by Mr. Lagoni);
Mr. Mangué Camara, Sub-Lieutenant, Customs Inspection Officer (examined by Mr. von
Brevern, cross-examined by Mr. Thiam, re-examined by Mr. M. A. Camara and Mr. von
Brevern);
Mr. Ahmadou Sow, Lieutenant, Naval Staff Officer (examined by Mr. Lagoni, cross-
examined by Mr. Thiam, re-examined by Mr. Lagoni).

25. A written and signed statement of each of the witnesses was submitted by the party calling
the witness.

26. In the course of the testimony of witnesses a number of exhibits were presented, including
the following:

- photographs said to show damage to the Saiga and equipment on board as a result of the
attack by the Guinean authorities;

- photographs of Mr. Sergey Klyuyev, Second Officer of the Saiga, and Mr. Niasse, painter
employed on the ship, showing injuries alleged to have been suffered by them as a result of
the force used to arrest the Saiga;

- a nautical chart showing areas off the coast of Guinea;

- a nautical chart showing the courses said to have been taken by the Saiga and the Guinean
patrol boats, respectively;

- a radiograph said to be that of Mr. Niasse;

- a handwritten statement said to be a report by the Chief of the Guinean joint mission of
Customs and Navy patrol vessels.

The original or a certified copy of each exhibit was delivered to the Registrar and duly
registered.

27. Pursuant to article 67, paragraph 2, of the Rules, copies of the pleadings and documents
annexed thereto, the Notification of 22 December 1997 and the 1998 Agreement were made
accessible to the public from the date of opening of the oral proceedings. In accordance with
article 86 of the Rules, a transcript of the verbatim record of each public sitting of the hearing
was prepared and circulated to the judges sitting in the case. Copies of the transcripts were also
circulated to the parties and made available to the public in printed and electronic form.

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28. In the Memorial and in the Counter-Memorial, the following submissions were presented
by the parties:

On behalf of Saint Vincent and the Grenadines,

in the Memorial:

the Government of St. Vincent and the Grenadines asks the International Tribunal to
adjudge and declare that:

(1) the actions of Guinea (inter alia the attack on the m/v “Saiga” and its crew in the
exclusive economic zone of Sierra Leone, its subsequent arrest, its detention and the
removal of the cargo of gasoil, its filing of charges against St. Vincent and the
Grenadines and its subsequently issuing a judgment against them) violate the right of St.
Vincent and the Grenadines and vessels flying its flag to enjoy freedom of navigation
and/or other internationally lawful uses of the sea related to the freedom of navigation, as
set forth in Articles 56(2) and 58 and related provisions of the Convention;

(2) subject to the limited exceptions as to enforcement provided by Article 33(1)(a) of the
Convention, the customs and contraband laws of Guinea, namely inter alia Articles 1 and
8 of Law 94/007/CTRN of 15 March 1994, Articles 316 and 317 of the Code des
Douanes, and Articles 361 and 363 of the Penal Code, may in no circumstances be
applied or enforced in the exclusive economic zone of Guinea;

(3) Guinea did not lawfully exercise the right of hot pursuit under Article 111 of the
Convention in respect of the m/v “Saiga” and is liable to compensate the m/v “Saiga”
pursuant to Article 111(8) of the Convention;

(4) Guinea has violated Articles 292(4) and 296 of the Convention in not releasing the
m/v “Saiga” and her crew immediately upon the posting of the guarantee of US$400,000
on 10 December 1997 or the subsequent clarification from Crédit Suisse on
11 December;

(5) the citing of St. Vincent and the Grenadines as the flag state of the m/v “Saiga” in the
criminal courts and proceedings instituted by Guinea violates the rights of St Vincent and
the Grenadines under the 1982 Convention;

[...]∗

(7) Guinea immediately return the equivalent in United States Dollars of the discharged
oil and return the Bank Guarantee;

(8) Guinea is liable for damages as a result of the aforesaid violations with interest
thereon; and

∗
As in the original.

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 (9) Guinea shall pay the costs of the Arbitral proceedings and the costs incurred by
St. Vincent and the Grenadines.

On behalf of Guinea,
in the Counter-Memorial:

the Government of the Republic of Guinea asks the International Tribunal to dismiss the
Submissions of St. Vincent and the Grenadines in total and to adjudge and declare that
St. Vincent and the Grenadines shall pay all legal and other costs the Republic of Guinea
has incurred in the M/V “SAIGA” cases nos.1 and 2.

29. In the Reply and in the Rejoinder, the following submissions were presented by the parties:

On behalf of Saint Vincent and the Grenadines,

in the Reply:

St. Vincent and the Grenadines adheres to her request that the International Tribunal
should adjudge and declare that:

(i) the actions of the Republic of Guinea violated the right of St. Vincent and the
Grenadines and of vessels flying her flag to enjoy freedom of navigation and/or other
internationally lawful uses of the sea, as set forth in Articles 56(2) and 58 and related
provisions of UNCLOS;

(ii) subject to the limited exceptions as to enforcement provided by Article 33(1)(a)

of UNCLOS, the customs and contraband laws of the Republic Guinea may in no
circumstances be applied or enforced in the exclusive economic zone of the Republic of
Guinea;

(iii) Guinea did not lawfully exercise the right of hot pursuit under Article 111 of
UNCLOS in respect of the M.V. Saiga and is liable to compensate the M.V. Saiga
according to Article 111(8) of UNCLOS;

(iv) the Republic of Guinea has violated Articles 292(4) and 296 of UNCLOS in not
releasing the M.V. Saiga and her crew immediately upon the posting of the guarantee of
US$400,000 on 10th December 1997 or the subsequent clarification from Crédit Suisse
on 11th December 1997;

(v) the citing of St. Vincent and the Grenadines in proceedings instituted by the
Guinean authorities in the criminal courts of the Republic of Guinea in relation to the
M.V. Saiga violated the rights of St. Vincent and the Grenadines under UNCLOS;

[(vi)...]∗

∗
As in the original.

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 (vii) the Republic of Guinea shall immediately repay to St. Vincent and the
Grenadines the sum realized on the sale of the cargo of the M.V. Saiga and return the
bank guarantee provided by St. Vincent and the Grenadines;

(viii) the Republic of Guinea shall pay damages as a result of such violations with
interest thereon;

(ix) the Republic of Guinea shall pay the costs of the Arbitral proceedings and the
costs incurred by St. Vincent and the Grenadines.

On behalf of Guinea,
in the Rejoinder:

the Republic of Guinea adheres to her request that the International Tribunal should
dismiss the Submissions of St. Vincent and the Grenadines in total and declare that St.
Vincent and the Grenadines shall pay all legal and other costs the Republic of Guinea has
incurred in the M/V “SAIGA” Cases nos.1 and 2.

30. In accordance with article 75, paragraph 2, of the Rules, the following final submissions
were presented by the parties at the end of the hearing:

On behalf of Saint Vincent and the Grenadines:

the Government of St. Vincent & the Grenadines asks the International Tribunal to
adjudge and declare that:

(1) the actions of Guinea (inter alia the attack on the m/v “Saiga” and her crew in the
exclusive economic zone of Sierra Leone, its subsequent arrest, its detention and the
removal of the cargo of gasoil, its filing of charges against St. Vincent & the
Grenadines and its subsequently issuing a judgment against them) violate the right of
St. Vincent & the Grenadines and vessels flying its flag to enjoy freedom of
navigation and/or other internationally lawful uses of the sea related to the freedom
of navigation, as set forth in Articles 56(2) and 58 and related provisions of the
Convention;

(2) subject to the limited exceptions as to enforcement provided by Article 33(1)(a) of

the Convention, the customs and contraband laws of Guinea, namely inter alia
Articles 1 and 8 of Law 94/007/CTRN of 15 March 1994, Articles 316 and 317 of
the Code des Douanes, and Articles 361 and 363 of the Penal Code, may in no
circumstances be applied or enforced in the exclusive economic zone of Guinea;

(3) Guinea did not lawfully exercise the right of hot pursuit under Article 111 of the
Convention in respect of the m/v “Saiga” and is liable to compensate the
m/v “Saiga” pursuant to Article 111(8) of the Convention;

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 (4) Guinea has violated Articles 292(4) and 296 of the Convention in not releasing the
m/v “Saiga” and her crew immediately upon the posting of the guarantee of
US$400,000 on 10 December 1997 or the subsequent clarification from Crédit
Suisse on 11 December;

(5) the citing of St. Vincent & the Grenadines as the Flag State of the m/v “Saiga” in the
criminal courts and proceedings instituted by Guinea violates the rights of
St. Vincent & the Grenadines under the 1982 Convention;

(6) Guinea immediately return the equivalent in United States Dollars of the discharged
gasoil;

(7) Guinea is liable for damages as a result of the aforesaid violations with interest
thereon; and

(8) Guinea shall pay the costs of the proceedings and the costs incurred by St. Vincent &
the Grenadines.

On behalf of Guinea:

the Government of the Republic of Guinea asks the International Tribunal to adjudge and
declare that:

(1) the claims of St. Vincent and the Grenadines are dismissed as non-admissible.
St. Vincent and the Grenadines shall pay the costs of the proceedings and the costs
incurred by the Republic of Guinea.

Alternatively, that:

(2) the actions of the Republic of Guinea did not violate the right of St. Vincent and
the Grenadines and of vessels flying her flag to enjoy freedom of navigation and/or other
internationally lawful uses of the sea, as set forth in Articles 56(2) and 58 and related
provisions of UNCLOS;

(3) Guinean laws can be applied for the purpose of controlling and suppressing the sale
of gasoil to fishing vessels in the customs radius (“rayon des douanes”) according to
Article 34 of the Customs Code of Guinea;

(4) Guinea did lawfully exercise the right of Hot Pursuit under Article 111 of
UNCLOS in respect to the MV “SAIGA” and is not liable to compensate the M/V Saiga
according to article 111(8) of UNCLOS;

(5) the Republic of Guinea has not violated article 292(4) and 296 of UNCLOS;

(6) The mentioning of St. Vincent and the Grenadines in the “Cédule de Citation” of
the Tribunal de Première Instance de Conakry of 12 December 1997 under the heading

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 “CIVILEMENT ... RESPONSABLE À CITER” did not violate the rights of St. Vincent
and the Grenadines under UNCLOS;

(7) There is no obligation of the Republic of Guinea to immediately return to

St. Vincent and the Grenadines the equivalent in United States Dollars of the discharged
gasoil;

(8) The Republic of Guinea has no obligation to pay damages to St. Vincent and the
Grenadines;

(9) St. Vincent and the Grenadines shall pay the costs of the proceedings and the costs
incurred by the Republic of Guinea.

Factual background

31. The Saiga is an oil tanker. At the time of its arrest on 28 October 1997, it was owned by
Tabona Shipping Company Ltd. of Nicosia, Cyprus, and managed by Seascot Shipmanagement
Ltd. of Glasgow, Scotland. The ship was chartered to Lemania Shipping Group Ltd. of Geneva,
Switzerland. The Saiga was provisionally registered in Saint Vincent and the Grenadines on
12 March 1997. The Master and crew of the ship were all of Ukrainian nationality. There were
also three Senegalese nationals who were employed as painters. The Saiga was engaged in
selling gas oil as bunker and occasionally water to fishing and other vessels off the coast of West
Africa. The owner of the cargo of gas oil on board was Addax BV of Geneva, Switzerland.

32. Under the command of Captain Orlov, the Saiga left Dakar, Senegal, on 24 October 1997
fully laden with approximately 5,400 metric tons of gas oil. On 27 October 1997, between 0400
and 1400 hours and at a point 10°25'03"N and 15°42'06"W, the Saiga supplied gas oil to three
fishing vessels, the Giuseppe Primo and the Kriti, both flying the flag of Senegal, and the Eleni S,
flying the flag of Greece. This point was approximately 22 nautical miles from Guinea’s island of
Alcatraz. All three fishing vessels were licensed by Guinea to fish in its exclusive economic zone.
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 exclusive economic zone of
Guinea.

33. At 0800 hours on 28 October 1997, the Saiga, according to its log book, was at a point
09°00'01"N and 14°58'58"W. It had been drifting since 0420 hours while awaiting the arrival of
fishing vessels to which it was to supply gas oil. This point was south of the southern limit of the
exclusive economic zone of Guinea. At about 0900 hours the Saiga was attacked by a Guinean
patrol boat (P35). Officers from that boat and another Guinean patrol boat (P328) subsequently
boarded the ship and arrested it. On the same day, the ship and its crew were brought to Conakry,
Guinea, where its Master was detained. The travel documents of the members of the crew were
taken from them by the authorities of Guinea and armed guards were placed on board the ship. On
1 November 1997, two injured persons from the Saiga, Mr. Sergey Klyuyev and Mr. Djibril Niasse,
were permitted to leave Conakry for Dakar for medical treatment. Between 10 and 12 November
1997, the cargo of gas oil on board the ship, amounting to 4,941.322 metric tons, was discharged on

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the orders of the Guinean authorities. Seven members of the crew and two painters left Conakry on
17 November 1997, one crew member left on 14 December 1997 and six on 12 January 1998. The
Master and six crew members remained in Conakry until the ship was released on
28 February 1998.

34. An account of the circumstances of the arrest of the Saiga was drawn up by Guinean
Customs authorities in a “Procès-Verbal” bearing the designation “PV29” (hereinafter “PV29”).
PV29 contains a statement of the Master obtained by interrogation by the Guinean authorities. A
document, “Conclusions présentées au nom de l’Administration des Douanes par le Chef de la
Brigade Mobile Nationale des Douanes” (Conclusions presented in the name of the Customs
administration by the Head of the National Mobile Customs Brigade), issued on
14 November 1997 under the signature of the Chief of the National Mobile Customs Brigade, set
out the basis of the action against the Master. The criminal charges against the Master were
specified in a schedule of summons (cédule de citation), issued on 10 December 1997 under the
authority of the Public Prosecutor (Procureur de la République), which additionally named the
State of Saint Vincent and the Grenadines as civilly responsible to be summoned (civilement
responsable à citer). Criminal proceedings were subsequently instituted by the Guinean
authorities against the Master before the Tribunal of First Instance (tribunal de première
instance) in Conakry.

35. On 13 November 1997, Saint Vincent and the Grenadines submitted to this Tribunal a
Request for the prompt release of the Saiga and its crew under article 292 of the Convention. On
4 December 1997, the Tribunal delivered Judgment on the Request. The Judgment ordered that
Guinea promptly release the Saiga and its crew upon the posting of a reasonable bond or security by
Saint Vincent and the Grenadines. The security consisted of the gas oil discharged from the Saiga
by the authorities of Guinea plus an amount of US$ 400,000 to be posted in the form of a letter of
credit or bank guarantee or, if agreed by the parties, in any other form.

36. On 17 December 1997, judgment was rendered by the Tribunal of First Instance in Conakry
against the Master. The Tribunal of First Instance cited, as the basis of the charges against the
Master, articles 111 and 242 of the Convention, articles 361 and 363 of the Penal Code of Guinea
(hereinafter “the Penal Code”), article 40 of the Merchant Marine Code of Guinea (hereinafter the
“Merchant Marine Code”), articles 34, 316 and 317 of the Customs Code of Guinea (hereinafter
“the Customs Code”) and articles 1 and 8 of 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
(hereinafter “Law L/94/007”). The charge against the Master was that he had “imported, without
declaring it, 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”.

37. The Tribunal of First Instance in Conakry found the Master guilty as charged and imposed on
him a fine of 15,354,024,040 Guinean francs. It also ordered the confiscation of the vessel and its
cargo as a guarantee for payment of the penalty.

38. The Master appealed to the Court of Appeal (cour d'appel) in Conakry against his conviction
by the Tribunal of First Instance. On 3 February 1998, judgment was rendered by the Court of

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Appeal. The Court of Appeal found the Master guilty of the offence of “illegal import, buying and
selling of fuel in the Republic of Guinea” which it stated was punishable under Law L/94/007. The
Court of Appeal imposed a suspended sentence of six months imprisonment on the Master, a fine of
15,354,040,000 Guinean francs and ordered that all fees and expenses be at his expense. It also
ordered the confiscation of the cargo and the seizure of the vessel as a guarantee for payment of the
fine.

39. On 11 March 1998, the Tribunal delivered the Order prescribing provisional measures,
referred to in paragraph 8. Prior to the issue of its Order, the Tribunal was informed, by a letter
dated 4 March 1998 sent on behalf of the Agent of Saint Vincent and the Grenadines, that the Saiga
had been released from detention and had arrived safely in Dakar, Senegal. According to the Deed
of Release signed by the Guinean authorities and the Master, the release was in execution of the
Judgment of the Tribunal of 4 December 1997.

Jurisdiction

40. There is no disagreement between the parties regarding the jurisdiction of the Tribunal in
the present case. Nevertheless, the Tribunal must satisfy itself that it has jurisdiction to deal with
the case as submitted.

41. As stated in paragraph 1, the dispute was originally submitted by the Notification of
22 December 1997 to an arbitral tribunal to be constituted in accordance with Annex VII to the
Convention. The parties subsequently agreed, by the 1998 Agreement, to transfer the dispute to
the Tribunal. The 1998 Agreement provides, in paragraph 1, that “[t]he dispute shall be deemed
to have been submitted to the International Tribunal for the Law of the Sea on the
22 December 1997, the date of the Notification by St. Vincent and the Grenadines”.

42. The Tribunal, in its Order dated 20 February 1998, stated that, having regard to the
1998 Agreement and article 287 of the Convention, it was “satisfied that Saint Vincent and the
Grenadines and Guinea have agreed to submit the dispute to it”.

43. The Tribunal finds that the basis of its jurisdiction in this case is the 1998 Agreement,
which transferred the dispute to the Tribunal, together with articles 286, 287 and 288 of the
Convention.

44. Paragraph 2 of the 1998 Agreement provides that the Tribunal may consider “the objection as
to jurisdiction raised in the Government of Guinea’s Statement of Response dated
30 January 1998”. That objection, based on article 297, paragraph 3, of the Convention, was raised
in the phase of the present proceedings relating to the Request for the prescription of provisional
measures. In the Order of 11 March 1998, the Tribunal stated that “article 297, paragraph 1, of the
Convention, invoked by the Applicant, appears prima facie to afford a basis for the jurisdiction of
the Tribunal”. In the current phase of the proceedings, Guinea did not reiterate the objection
based on article 297, paragraph 3, of the Convention. On the contrary, it confirmed that, in its
view, “the basis for the International Tribunal’s jurisdiction on the merits of the dispute is the
1998 Agreement of the parties”. The Tribunal, therefore, finds that the reference, in the
1998 Agreement, to the “objection as to jurisdiction” does not affect its jurisdiction to deal with the

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dispute.

45. Accordingly, the Tribunal finds that it has jurisdiction over the dispute as submitted to it.

Objections to challenges to admissibility

46. Guinea raises a number of objections to the admissibility of the claims set out in the
application. Saint Vincent and the Grenadines contends that Guinea does not have the right to
raise any objections to admissibility in this case. In support of its contentions, Saint Vincent and
the Grenadines relies on the terms of the 1998 Agreement and on article 97, paragraph 1, of the
Rules.

47. With respect to the 1998 Agreement, Saint Vincent and the Grenadines refers to
paragraph 2 which states:

The written and oral proceedings before the International Tribunal for the Law of the Sea
shall comprise a single phase dealing with all aspects of the merits (including damages
and costs) and the objection as to jurisdiction raised in the Government of Guinea’s
Statement of Response dated 30 January 1998.

48. Saint Vincent and the Grenadines asserts that this provision permits Guinea to raise only
the objection to jurisdiction and precludes objections to admissibility. According to Saint
Vincent and the Grenadines, reservation of the specific objection to jurisdiction implies that all
other objections to jurisdiction or admissibility were ruled out by the parties.

49. Saint Vincent and the Grenadines further argues that Guinea has lost the right to raise
objections to admissibility because it failed to meet the time-limit of 90 days specified by
article 97 of the Rules for making such objections. It points out that Guinea’s objections to
admissibility were made in the Counter-Memorial submitted on 16 October 1998, more than
90 days after the institution of the proceedings on 22 December 1997.

50. Guinea replies that by agreeing to paragraph 2 of the 1998 Agreement it did not give up its
right to raise objections to admissibility. It also contends that article 97 of the Rules does not
apply to its objections to admissibility. Guinea submits that, in any case, its objections were
made within the time-limit specified in article 97 of the Rules, because, in its opinion, the
proceedings were actually instituted by the submission of the Memorial filed by Saint Vincent
and the Grenadines on 19 June 1998.

51. In the view of the Tribunal, the object and purpose of the 1998 Agreement was to transfer to
the Tribunal the same dispute that would have been the subject of the proceedings before the arbitral
tribunal. Before the arbitral tribunal, each party would have retained the general right to present
its contentions. The Tribunal considers that the parties have the same general right in the present
proceedings, subject only to the restrictions that are clearly imposed by the terms of the
1998 Agreement and the Rules. In the present case, the Tribunal finds that the reservation of
Guinea’s right in respect of the specific objection as to jurisdiction did not deprive it of its
general right to raise objections to admissibility, provided that it did so in accordance with the

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Rules and consistently with the agreement between the parties that the proceedings be conducted
in a single phase. The Tribunal, therefore, concludes that the 1998 Agreement does not preclude
the raising of objections to admissibility by Guinea.

52. The Tribunal must now consider the contention of Saint Vincent and the Grenadines that
the objections of Guinea are not receivable because they were raised after the expiry of the time-
limit specified in article 97, paragraph 1, of the Rules. This paragraph states:

Any objection to the jurisdiction of the Tribunal or to the admissibility of the application,
or other objection the decision upon which is requested before any further proceedings
on the merits, shall be made in writing within 90 days from the institution of
proceedings.

53. The Tribunal observes that, as stated in its Order of 20 February 1998, the proceedings
were instituted on 22 December 1997 and not on 19 June 1998, as claimed by Guinea. Article 97
deals with objections to jurisdiction or admissibility that are raised as preliminary questions to be
dealt with in incidental proceedings. As stated therein, the article applies to an objection “the
decision upon which is requested before any further proceedings on the merits”. Accordingly,
the time-limit in the article does not apply to objections to jurisdiction or admissibility which are
not requested to be considered before any further proceedings on the merits. In the present case,
this is confirmed by the fact that the parties agreed that the proceedings before the Tribunal
“shall comprise a single phase dealing with all aspects of the merits (including damages and
costs) and the objection as to jurisdiction …”. The Tribunal, therefore, concludes that article 97
of the Rules does not preclude the raising of objections to admissibility in this case.

54. For the above reasons, the Tribunal finds that the objections to admissibility raised by
Guinea are receivable and may, therefore, be considered.

Challenges to admissibility
Registration of the Saiga

55. The first objection raised by Guinea to the admissibility of the claims set out in the
application is that Saint Vincent and the Grenadines does not have legal standing to bring claims
in connection with the measures taken by Guinea against the Saiga. The reason given by Guinea
for its contention is that on the day of its arrest the ship was “not validly registered under the flag
of Saint Vincent and the Grenadines” and that, consequently, Saint Vincent and the Grenadines
is not legally competent to present claims either on its behalf or in respect of the ship, its Master
and the other members of the crew, its owners or its operators.

56. This contention of Guinea is challenged by Saint Vincent and the Grenadines on several
grounds.

57. The facts relating to the registration of the Saiga, as they emerge from the evidence
adduced before the Tribunal, are as follows:

(a) The Saiga was registered provisionally on 12 March 1997 as a Saint Vincent and the

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Grenadines ship under section 36 of the Merchant Shipping Act of 1982 of Saint Vincent and the
Grenadines (hereinafter “the Merchant Shipping Act”). The Provisional Certificate of
Registration issued to the ship on 14 April 1997 stated that it was issued by the Commissioner
for Maritime Affairs of Saint Vincent and the Grenadines on behalf of the Government of Saint
Vincent and the Grenadines under the terms of the Merchant Shipping Act. The Certificate
stated: “This Certificate expires on 12 September 1997.”

(b) The registration of the ship was recorded in the Registry Book of Saint Vincent and the
Grenadines on 26 March 1997. The entry stated: “Valid thru: 12/09/1997”.

(c) A Permanent Certificate of Registration was issued on 28 November 1997 by the

Commissioner for Maritime Affairs of Saint Vincent and the Grenadines on behalf of that State.
The Certificate stated: “This Certificate is permanent.”

58. Guinea contends that the ship was unregistered between 12 September 1997 and
28 November 1997 because the Provisional Certificate of Registration expired on
12 September 1997 and the Permanent Certificate of Registration was issued on
28 November 1997. From this Guinea concludes: “It is thus very clear that the MV ‘SAIGA was
not validly registered’ in the time period between 12 September 1997 and 28 November 1997.
For this reason, the MV ‘SAIGA’ may [be] qualified to be a ship without nationality at the time
of its attack.” Guinea also questioned whether the ship had been deleted from the Maltese
Register where it was previously registered.

59. Saint Vincent and the Grenadines controverts Guinea’s assertion that the expiry of the
Provisional Certificate of Registration implies that the ship was not registered or that it lost the
nationality of Saint Vincent and the Grenadines. It argues that when a vessel is registered under
its flag “it remains so registered until deleted from the registry”. It notes that the conditions and
procedures for deletion of ships from its Registry are set out in Part I, sections 9 to 42 and 59 to
61, of the Merchant Shipping Act, and emphasizes that none of these procedures was at any time
applied to the Saiga. In support of its claim, Saint Vincent and the Grenadines refers to the
declaration dated 27 October 1998 by the Commissioner for Maritime Affairs of Saint Vincent
and the Grenadines which states that the ship was registered under the Saint Vincent and the
Grenadines flag on 12 March 1997 “and is still today validly registered”.

60. Saint Vincent and the Grenadines further contends that, under the Merchant Shipping Act,
a ship does not lose Vincentian nationality because of the expiry of its provisional certificate of
registration. In support of its contentions, Saint Vincent and the Grenadines refers to
section 36(2) of the Merchant Shipping Act which states that a provisional certificate “shall have
the same effect as the ordinary certificate of registration until the expiry of one year from the
date of its issue”. Saint Vincent and the Grenadines argues that, pursuant to this provision, a
provisional certificate of registration remains in force until the expiry of one year from the date
of its issue. In further support for this contention, Saint Vincent and the Grenadines points out
that, under section 36(3)(d) of the Merchant Shipping Act, payment of “the annual fee for one
year” is required when an application is made for provisional registration. It further maintains
that, just as a person would not lose nationality when his or her passport expires, a vessel would
not cease to be registered merely because of the expiry of a provisional certificate. According to

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Saint Vincent and the Grenadines, the provisional certificate, like a passport, is evidence, but not
the source, of national status. For these reasons, Saint Vincent and the Grenadines contends that
the Provisional Certificate in this case remained in force after 12 September 1997 and at all times
material to the present dispute. With regard to the question raised by Guinea concerning the
previous registration of the ship, Saint Vincent and the Grenadines stated that its authorities had
received from the owner of the ship “satisfactory evidence that the ship’s registration in the
country of last registration had been closed” as required by section 37 of the Merchant Shipping
Act.

61. Guinea argues that automatic extension of a provisional certificate of registration is neither
provided for nor envisaged under the Merchant Shipping Act. In this connection, it argues that
the declarations by the Commissioner for Maritime Affairs of 27 October 1998 and the Deputy
Commissioner for Maritime Affairs of 1 March 1999, to the effect that the Saiga “remained
validly registered in the Register of Ships of Saint Vincent & the Grenadines as at
27th October 1997” do not suffice to fill the gap in registration between 12 September 1997 and
28 November 1997, when the Permanent Certificate of Registration of the Saiga was issued. It
further argues that these declarations on the registration status cannot be accepted as independent
documentary evidence in the context of the present proceedings. According to Guinea, the
Saiga’s registration could only have continued after the expiry of its Provisional Certificate if the
Provisional Certificate had been replaced with another provisional certificate or its expiry date
had been extended. Guinea points out that there is no evidence that any such action was taken
after the Provisional Certificate expired. It states that a comparison of a provisional certificate of
registration of a ship with a person’s passport is misplaced, since a ship acquires nationality by
registration and is required to have a certificate, while a person’s nationality does not depend on
the acquisition or retention of a passport. For these reasons, Guinea maintains that the Saiga did
not have the nationality of Saint Vincent and the Grenadines during the period between the
expiry of the Provisional Certificate on 12 September 1997 and the issue of the Permanent
Certificate on 28 November 1997.

62. The question for consideration is whether the Saiga had the nationality of Saint Vincent
and the Grenadines at the time of its arrest. The relevant provision of the Convention is article
91, which reads as follows:

Article 91
Nationality of ships

1. Every State shall fix the conditions for the grant of its nationality to ships, for the
registration of ships in its territory, and for the right to fly its flag. Ships have the
nationality of the State whose flag they are entitled to fly. There must exist a genuine
link between the State and the ship.

2. Every State shall issue to ships to which it has granted the right to fly its flag
documents to that effect.

63. Article 91 leaves to each State exclusive jurisdiction over the granting of its nationality to
ships. In this respect, article 91 codifies a well-established rule of general international law.

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Under this article, it is for Saint Vincent and the Grenadines to fix the conditions for the grant of
its nationality to ships, for the registration of ships in its territory and for the right to fly its flag.
These matters are regulated by a State in its domestic law. Pursuant to article 91, paragraph 2,
Saint Vincent and the Grenadines is under an obligation to issue to ships to which it has granted
the right to fly its flag documents to that effect. The issue of such documents is regulated by
domestic law.

64. International law recognizes several modalities for the grant of nationality to different types
of ships. In the case of merchant ships, the normal procedure used by States to grant nationality
is registration in accordance with domestic legislation adopted for that purpose. This procedure
is adopted by Saint Vincent and the Grenadines in the Merchant Shipping Act.

65. Determination of the criteria and establishment of the procedures for granting and
withdrawing nationality to ships are matters within the exclusive jurisdiction of the flag State.
Nevertheless, disputes concerning such matters may be subject to the procedures under Part XV
of the Convention, especially in cases where issues of interpretation or application of provisions
of the Convention are involved.

66. The Tribunal considers that the nationality of a ship is a question of fact to be determined,
like other facts in dispute before it, on the basis of evidence adduced by the parties.

67. Saint Vincent and the Grenadines has produced evidence before the Tribunal to support its
assertion that the Saiga was a ship entitled to fly its flag at the time of the incident giving rise to
the dispute. In addition to making references to the relevant provisions of the Merchant Shipping
Act, Saint Vincent and the Grenadines has drawn attention to several indications of Vincentian
nationality on the ship or carried on board. These include the inscription of “Kingstown” as the
port of registry on the stern of the vessel, the documents on board and the ship’s seal which
contained the words “SAIGA Kingstown” and the then current charter-party which recorded the
flag of the vessel as “Saint Vincent and the Grenadines”.

68. The evidence adduced by Saint Vincent and the Grenadines has been reinforced by its
conduct. Saint Vincent and the Grenadines has at all times material to the dispute operated on
the basis that the Saiga was a ship of its nationality. It has acted as the flag State of the ship
during all phases of the proceedings. It was in that capacity that it invoked the jurisdiction of the
Tribunal in its Application for the prompt release of the Saiga and its crew under article 292 of
the Convention and in its Request for the prescription of provisional measures under article 290
of the Convention.

69. As far as Guinea is concerned, the Tribunal cannot fail to note that it did not challenge or
raise any doubts about the registration or nationality of the ship at any time until the submission
of its Counter-Memorial in October 1998. Prior to this, it was open to Guinea to make inquiries
regarding the registration of the Saiga or documentation relating to it. For example, Guinea
could have inspected the Register of Ships of Saint Vincent and the Grenadines. Opportunities
for raising doubts about the registration or nationality of the ship were available during the
proceedings for prompt release in November 1997 and for the prescription of provisional
measures in February 1998. It is also pertinent to note that the authorities of Guinea named Saint

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Vincent and the Grenadines as civilly responsible to be summoned in the schedule of summons
by which the Master was charged before the Tribunal of First Instance in Conakry. In the ruling
of the Court of Appeal, Saint Vincent and the Grenadines was stated to be the flag State of the
Saiga.

70. With regard to the previous registration of the Saiga, the Tribunal notes the statement made
by Saint Vincent and the Grenadines in paragraph 60. It considers this statement to be sufficient.

71. The Tribunal recalls that, in its Judgment of 4 December 1997 and in its Order of
11 March 1998, the Saiga is described as a ship flying the flag of Saint Vincent and the
Grenadines.

72. On the basis of the evidence before it, the Tribunal finds that Saint Vincent and the
Grenadines has discharged the initial burden of establishing that the Saiga had Vincentian
nationality at the time it was arrested by Guinea. Guinea had therefore to prove its contention
that the ship was not registered in or did not have the nationality of Saint Vincent and the
Grenadines at that time. The Tribunal considers that the burden has not been discharged and that
it has not been established that the Saiga was not registered in or did not have the nationality of
Saint Vincent and the Grenadines at the time of the arrest.

73. The Tribunal concludes:

(a) it has not been established that the Vincentian registration or nationality of the Saiga was
extinguished in the period between the date on which the Provisional Certificate of Registration was
stated to expire and the date of issue of the Permanent Certificate of Registration;

(b) in the particular circumstances of this case, the consistent conduct of Saint Vincent and the
Grenadines provides sufficient support for the conclusion that the Saiga retained the registration
and nationality of Saint Vincent and the Grenadines at all times material to the dispute;

(c) in view of Guinea’s failure to question the assertion of Saint Vincent and the Grenadines that
it is the flag State of the Saiga when it had every reasonable opportunity to do so and its other
conduct in the case, Guinea cannot successfully challenge the registration and nationality of the
Saiga at this stage;

(d) in the particular circumstances of this case, it would not be consistent with justice if the
Tribunal were to decline to deal with the merits of the dispute.

74. For the above reasons, the Tribunal rejects Guinea’s objection to the admissibility of the
claims of Saint Vincent and the Grenadines based on the ground that the Saiga was not registered
in Saint Vincent and the Grenadines at the time of its arrest and that, consequently, the Saiga did
not have Vincentian nationality at that time.

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 Genuine link

75. The next objection to admissibility raised by Guinea is that there was no genuine link
between the Saiga and Saint Vincent and the Grenadines. Guinea contends that “[w]ithout a
genuine link between Saint Vincent and the Grenadines and the M/V ‘Saiga’, [Saint Vincent and
the Grenadines’] claim concerning a violation of its right of navigation and the status of the ship
is not admissible before the Tribunal vis-à-vis Guinea, because Guinea is not bound to recognise
the Vincentian nationality of the M/V ‘Saiga’, which forms a prerequisite for the mentioned
claim in international law”.

76. Guinea further argues that a State cannot fulfil its obligations as a flag State under the
Convention with regard to a ship unless it exercises prescriptive and enforcement jurisdiction
over the owner or, as the case may be, the operator of the ship. Guinea contends that, in the
absence of such jurisdiction, there is no genuine link between the ship and Saint Vincent and the
Grenadines and that, accordingly, it is not obliged to recognize the claims of Saint Vincent and the
Grenadines in relation to the ship.

77. Saint Vincent and the Grenadines maintains that there is nothing in the Convention to
support the contention that the existence of a genuine link between a ship and a State is a
necessary precondition for the grant of nationality to the ship, or that the absence of such a
genuine link deprives a flag State of the right to bring an international claim against another State
in respect of illegal measures taken against the ship.

78. Saint Vincent and the Grenadines also challenges the assertion of Guinea that there was no
genuine link between the Saiga and Saint Vincent and the Grenadines. It claims that the
requisite genuine link existed between it and the ship. Saint Vincent and the Grenadines calls
attention to various facts which, according to it, provide evidence of this link. These include the
fact that the owner of the Saiga is represented in Saint Vincent and the Grenadines by a company
formed and established in that State and the fact that the Saiga is subject to the supervision of the
Vincentian authorities to secure compliance with the International Convention for the Safety of
Life at Sea (SOLAS), 1960 and 1974, the International Convention for the Prevention of
Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL
73/78), and other conventions of the International Maritime Organization to which Saint Vincent
and the Grenadines is a party. In addition, Saint Vincent and the Grenadines maintains that
arrangements have been made to secure regular supervision of the vessel’s seaworthiness
through surveys, on at least an annual basis, conducted by reputable classification societies
authorized for that purpose by Saint Vincent and the Grenadines. Saint Vincent and the
Grenadines also points out that, under its laws, preference is given to Vincentian nationals in the
manning of ships flying its flag. It further draws attention to the vigorous efforts made by its
authorities to secure the protection of the Saiga on the international plane before and throughout
the present dispute.

79. Article 91, paragraph 1, of the Convention provides: “There must exist a genuine link
between the State and the ship.” Two questions need to be addressed in this connection. The
first is whether the absence of a genuine link between a flag State and a ship entitles another
State to refuse to recognize the nationality of the ship. The second question is whether or not a

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genuine link existed between the Saiga and Saint Vincent and the Grenadines at the time of the
incident.

80. With regard to the first question, the Tribunal notes that the provision in article 91,
paragraph 1, of the Convention, requiring a genuine link between the State and the ship, does not
provide the answer. Nor do articles 92 and 94 of the Convention, which together with article 91
constitute the context of the provision, provide the answer. The Tribunal, however, recalls that
the International Law Commission, in article 29 of the Draft Articles on the Law of the Sea
adopted by it in 1956, proposed the concept of a “genuine link” as a criterion not only for the
attribution of nationality to a ship but also for the recognition by other States of such nationality.
After providing that “[s]hips have the nationality of the State whose flag they are entitled to fly”,
the draft article continued: “Nevertheless, for purposes of recognition of the national character of
the ship by other States, there must exist a genuine link between the State and the ship”. This
sentence was not included in article 5, paragraph 1, of the Convention on the High Seas of
29 April 1958 (hereinafter “the 1958 Convention”), which reads, in part, as follows:

There must exist a genuine link between the State and the ship; in particular, the State
must effectively exercise its jurisdiction and control in administrative, technical and
social matters over ships flying its flag.

Thus, while the obligation regarding a genuine link was maintained in the 1958 Convention, the
proposal that the existence of a genuine link should be a basis for the recognition of nationality
was not adopted.

81. The Convention follows the approach of the 1958 Convention. Article 91 retains the part
of the third sentence of article 5, paragraph 1, of the 1958 Convention which provides that there
must be a genuine link between the State and the ship. The other part of that sentence, stating
that the flag State shall effectively exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag, is reflected in article 94 of the Convention,
dealing with the duties of the flag State.

82. Paragraphs 2 to 5 of article 94 of the Convention outline the measures that a flag State is
required to take to exercise effective jurisdiction as envisaged in paragraph 1. Paragraph 6 sets
out the procedure to be followed where another State has “clear grounds to believe that proper
jurisdiction and control with respect to a ship have not been exercised”. That State is entitled to
report the facts to the flag State which is then obliged to “investigate the matter and, if
appropriate, take any action necessary to remedy the situation”. There is nothing in article 94 to
permit a State which discovers evidence indicating the absence of proper jurisdiction and control
by a flag State over a ship to refuse to recognize the right of the ship to fly the flag of the flag
State.

83. The conclusion of the Tribunal is that the purpose of the provisions of the Convention on
the need for a genuine link between a ship and its flag State is to secure more effective
implementation of the duties of the flag State, and not to establish criteria by reference to which
the validity of the registration of ships in a flag State may be challenged by other States.

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84. This conclusion is not put into question by the United Nations Convention on Conditions
for Registration of Ships of 7 February 1986 invoked by Guinea. This Convention (which is not
in force) sets out as one of its principal objectives the strengthening of “the genuine link between
a State and ships flying its flag”. In any case, the Tribunal observes that Guinea has not cited
any provision in that Convention which lends support to its contention that “a basic condition for
the registration of a ship is that also the owner or operator of the ship is under the jurisdiction of
the flag State”.

85. The conclusion is further strengthened by the Agreement for the Implementation of the
Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982
Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks opened for signature on 4 December 1995 and the Agreement to Promote
Compliance with International Conservation and Management Measures by Fishing Vessels on
the High Seas of 24 November 1993. These Agreements, neither of which is in force, set out,
inter alia, detailed obligations to be discharged by the flag States of fishing vessels but do not
deal with the conditions to be satisfied for the registration of fishing vessels.

86. In the light of the above considerations, the Tribunal concludes that there is no legal basis
for the claim of Guinea that it can refuse to recognize the right of the Saiga to fly the flag of
Saint Vincent and the Grenadines on the ground that there was no genuine link between the ship
and Saint Vincent and the Grenadines.

87. With regard to the second question, the Tribunal finds that, in any case, the evidence
adduced by Guinea is not sufficient to justify its contention that there was no genuine link
between the ship and Saint Vincent and the Grenadines at the material time.

88. For the above reasons, the Tribunal rejects the objection to admissibility based on the
absence of a genuine link between the Saiga and Saint Vincent and the Grenadines.

Exhaustion of local remedies

89. Guinea further objects to the admissibility of certain claims advanced by Saint Vincent and
the Grenadines in respect of damage suffered by natural and juridical persons as a result of the
measures taken by Guinea against the Saiga. It contends that these claims are inadmissible
because the persons concerned did not exhaust local remedies, as required by article 295 of the
Convention.

90. In particular, Guinea claims that the Master did not exhaust the remedies available to him
under Guinean law by failing to have recourse to the Supreme Court (cour suprême) against the
Judgment of 3 February 1998 of the Criminal Chamber (chambre correctionnelle) of the Court
of Appeal of Conakry. Similarly, the owners of the Saiga, as well as the owners of the
confiscated cargo of gas oil, had the right to institute legal proceedings to challenge the seizure
of the ship and the confiscation of the cargo, but neither of them exercised this right. Guinea
also states that the Master and owners of the ship as well as the owners of the cargo could have
availed themselves of article 251 of the Customs Code which makes provision for a compromise
settlement.

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91. Saint Vincent and the Grenadines challenges this objection of Guinea. It argues that the
rule on the exhaustion of local remedies does not apply in the present case since the actions of
Guinea against the Saiga, a ship flying its flag, violated its rights as a flag State under the
Convention, including the right to have its vessels enjoy the freedom of navigation and other
internationally lawful uses of the sea related to that freedom, as set out in articles 56 and 58 and
other provisions of the Convention. It points out that the actions of Guinea complained of
include: the attack on the Saiga and its crew outside the limits of the exclusive economic zone of
Guinea in circumstances that did not justify hot pursuit in accordance with article 111 of the
Convention; the illegal arrest of the ship by the use of excessive and unreasonable force; the
escort of the ship to Conakry and its detention there; the discharge of the cargo; the criminal
prosecution and conviction of the Master and the imposition of a penal sentence and fine on him,
as well as the confiscation of the cargo and the seizure of the ship as security for the fine. Saint
Vincent and the Grenadines’ other complaints are that Guinea violated articles 292, paragraph 4,
and 296 of the Convention by failing to comply with the Judgment of the Tribunal of
4 December 1997; and that the rights of Saint Vincent and the Grenadines were violated by
Guinea when it was cited as the flag State of the M/V Saiga in the criminal courts and
proceedings instituted by Guinea.

92. Saint Vincent and the Grenadines further contends that the rule that local remedies must be
exhausted applies only where there is a jurisdictional connection between the State against which
a claim is brought and the person in respect of whom the claim is advanced. It argues that this
connection was absent in the present case because the arrest of the ship took place outside the
territorial jurisdiction of Guinea and the ship was brought within the jurisdiction of Guinea by
force. According to Saint Vincent and the Grenadines, this is further reinforced by the fact that
the arrest was in contravention of the Convention and took place after an alleged hot pursuit that
did not satisfy the requirements set out in the Convention.

93. Saint Vincent and the Grenadines rejects Guinea’s submission that the voluntary presence
of the Saiga in its exclusive economic zone to supply gas oil to fishing vessels established the
jurisdictional connection between the ship and the State of Guinea needed for the application of
the rule on the exhaustion of local remedies. It argues that the activity engaged in by the Saiga
did not affect matters over which Guinea has sovereign rights or jurisdiction within the exclusive
economic zone, pursuant to article 56 of the Convention. Accordingly, the presence of the ship
in the exclusive economic zone did not establish a jurisdictional connection with Guinea.

94. Finally, Saint Vincent and the Grenadines argues that there were no local remedies which
could have been exhausted by the persons who suffered damages as a result of the measures
taken by Guinea against the Saiga. It maintains that, in any case, the remedies, if any, were not
effective. Saint Vincent and the Grenadines claims that, “having regard to all the circumstances
of the present case, including … the manner in which the Guinean authorities and courts dealt
with the master, vessel, cargo and crew; the manner in which St. Vincent and the Grenadines
were added to the cédule de citation; the speed with which the master was summonsed once the
guarantee of US$ 400,000 had been posted; the speed and manner with which the tribunal de
première instance and cour d’appel proceeded to judgment thereafter; and the errors contained in
those judgments, … the master, owners and owners or consignees of the cargo were not, in any
event, bound to exercise any right of appeal that they might have had”.

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95. Before dealing with the arguments of the parties, it is necessary to consider whether the
rule that local remedies must be exhausted is applicable in the present case. Article 295 of the
Convention reads as follows:

Article 295
Exhaustion of local remedies

Any dispute between States Parties concerning the interpretation or application of this
Convention may be submitted to the procedures provided for in [section 2 of Part XV]
only after local remedies have been exhausted where this is required by international law.

96. It follows that the question whether local remedies must be exhausted is answered by
international law. The Tribunal must, therefore, refer to international law in order to ascertain
the requirements for the application of this rule and to determine whether or not those
requirements are satisfied in the present case.

97. The Tribunal considers that in this case the rights which Saint Vincent and the Grenadines
claims have been violated by Guinea are all rights that belong to Saint Vincent and the
Grenadines under the Convention (articles 33, 56, 58, 111 and 292) or under international law.
The rights claimed by Saint Vincent and the Grenadines are listed in its submissions and may be
enumerated as follows:

(a) the right of freedom of navigation and other internationally lawful uses of the seas;

(b) the right not to be subjected to the customs and contraband laws of Guinea;

(c) the right not to be subjected to unlawful hot pursuit;

(d) the right to obtain prompt compliance with the Judgment of the Tribunal of
4 December 1997;

(e) the right not to be cited before the criminal courts of Guinea.

98. As stated in article 22 of the Draft Articles on State Responsibility adopted on first reading
by the International Law Commission, the rule that local remedies must be exhausted is
applicable when “the conduct of a State has created a situation not in conformity with the result
required of it by an international obligation concerning the treatment to be accorded to aliens
…”. None of the violations of rights claimed by Saint Vincent and the Grenadines, as listed in
paragraph 97, can be described as breaches of obligations concerning the treatment to be
accorded to aliens. They are all direct violations of the rights of Saint Vincent and the
Grenadines. Damage to the persons involved in the operation of the ship arises from those
violations. Accordingly, the claims in respect of such damage are not subject to the rule that
local remedies must be exhausted.

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99. But even if the Tribunal accepts Guinea’s contention that some of the claims made by Saint
Vincent and the Grenadines in respect of natural or juridical persons did not arise from direct
violations of the rights of Saint Vincent and the Grenadines, the question remains whether the
rule that local remedies must be exhausted applies to any of these claims. The parties agree that
a prerequisite for the application of the rule is that there must be a jurisdictional connection
between the person suffering damage and the State responsible for the wrongful act which
caused the damage. Saint Vincent and the Grenadines argues that no such jurisdictional
connection existed in this case, while Guinea contends that the presence and activities of the
Saiga in its customs radius were enough to establish such connection.

100. In the opinion of the Tribunal, whether there was a necessary jurisdictional connection
between Guinea and the natural or juridical persons in respect of whom Saint Vincent and the
Grenadines made claims must be determined in the light of the findings of the Tribunal on the
question whether Guinea’s application of its customs laws in a customs radius was permitted
under the Convention. If the Tribunal were to decide that Guinea was entitled to apply its
customs laws in its customs radius, the activities of the Saiga could be deemed to have been
within Guinea’s jurisdiction. If, on the other hand, Guinea’s application of its customs laws in
its customs radius were found to be contrary to the Convention, it would follow that no
jurisdictional connection existed. The question whether Guinea was entitled to apply its customs
laws is dealt with in paragraphs 110 to 136. For reasons set out in those paragraphs, the Tribunal
concludes that there was no jurisdictional connection between Guinea and the natural and
juridical persons in respect of whom Saint Vincent and the Grenadines made claims.
Accordingly, on this ground also, the rule that local remedies must be exhausted does not apply
in the present case.

101. In the light of its conclusion that the rule that local remedies must be exhausted does not
apply in this case, the Tribunal does not consider it necessary to deal with the arguments of the
parties on the question whether local remedies were available and, if so, whether they were
effective.

102. The Tribunal, therefore, rejects the objection of Guinea to admissibility based on the non-
exhaustion of local remedies.

Nationality of claims

103. In its last objection to admissibility, Guinea argues that certain claims of Saint Vincent
and the Grenadines cannot be entertained by the Tribunal because they relate to violations of the
rights of persons who are not nationals of Saint Vincent and the Grenadines. According to
Guinea, the claims of Saint Vincent and the Grenadines in respect of loss or damage sustained by
the ship, its owners, the Master and other members of the crew and other persons, including the
owners of the cargo, are clearly claims of diplomatic protection. In its view, Saint Vincent and
the Grenadines is not competent to institute these claims on behalf of the persons concerned
since none of them is a national of Saint Vincent and the Grenadines. During the oral
proceedings, Guinea withdrew its objection as far as it relates to the shipowners, but maintained
it in respect of the other persons.

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104. In opposing this objection, Saint Vincent and the Grenadines maintains that the rule of
international law that a State is entitled to claim protection only for its nationals does not apply
to claims in respect of persons and things on board a ship flying its flag. In such cases, the flag
State has the right to bring claims in respect of violations against the ship and all persons on
board or interested in its operation. Saint Vincent and the Grenadines, therefore, asserts that it
has the right to protect the ship flying its flag and those who serve on board, irrespective of their
nationality.

105. In dealing with this question, the Tribunal finds sufficient guidance in the Convention.
The Convention contains detailed provisions concerning the duties of flag States regarding ships
flying their flag. Articles 94 and 217, in particular, set out the obligations of the flag State which
can be discharged only through the exercise of appropriate jurisdiction and control over natural
and juridical persons such as the Master and other members of the crew, the owners or operators
and other persons involved in the activities of the ship. No distinction is made in these
provisions between nationals and non-nationals of a flag State. Additionally, articles 106, 110,
paragraph 3, and 111, paragraph 8, of the Convention contain provisions applicable to cases in
which measures have been taken by a State against a foreign ship. These measures are,
respectively, seizure of a ship on suspicion of piracy, exercise of the right of visit on board the
ship, and arrest of a ship in exercise of the right of hot pursuit. In these cases, the Convention
provides that, if the measures are found not to be justified, the State taking the measures shall be
obliged to pay compensation “for any loss or damage” sustained. In these cases, the Convention
does not relate the right to compensation to the nationality of persons suffering loss or damage.
Furthermore, in relation to proceedings for prompt release under article 292 of the Convention,
no significance is attached to the nationalities of persons involved in the operations of an arrested
ship.

106. The provisions referred to in the preceding paragraph indicate that the Convention
considers a ship as a unit, as regards the obligations of the flag State with respect to the ship and
the right of a flag State to seek reparation for loss or damage caused to the ship by acts of other
States and to institute proceedings under article 292 of the Convention. Thus the ship, every
thing on it, and every person involved or interested in its operations are treated as an entity
linked to the flag State. The nationalities of these persons are not relevant.

107. The Tribunal must also call attention to an aspect of the matter which is not without
significance in this case. This relates to two basic characteristics of modern maritime transport:
the transient and multinational composition of ships’ crews and the multiplicity of interests that
may be involved in the cargo on board a single ship. A container vessel carries a large number
of containers, and the persons with interests in them may be of many different nationalities. This
may also be true in relation to cargo on board a break-bulk carrier. Any of these ships could
have a crew comprising persons of several nationalities. If each person sustaining damage were
obliged to look for protection from the State of which such person is a national, undue hardship
would ensue.

108. The Tribunal is, therefore, unable to accept Guinea’s contention that Saint Vincent and
the Grenadines is not entitled to present claims for damages in respect of natural and juridical
persons who are not nationals of Saint Vincent and the Grenadines.

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109. In the light of the above considerations, the Tribunal rejects the objection to admissibility
based on nationality of claims.

Arrest of the Saiga

110. Saint Vincent and the Grenadines asserts that the arrest of the Saiga and the subsequent
actions of Guinea were illegal. It contends that the arrest of the Saiga was unlawful because the
ship did not violate any laws or regulations of Guinea that were applicable to it. It further maintains
that, if the laws cited by Guinea did apply to the activities of the Saiga, those laws, as applied by
Guinea, were incompatible with the Convention.

111. The laws invoked by Guinea as the basis for the arrest of the Saiga and the prosecution and
conviction of its Master are the following:

(a) Law L/94/007;

(b) The Merchant Marine Code;
(c) The Customs Code;
(d) The Penal Code.

112. Articles 1, 4, 6 and 8 of Law L/94/007 read (in translation) as follows:

Article 1:
The import, transport, storage and distribution of fuel by any natural person or corporate
body not legally authorized are prohibited in the Republic of Guinea.

Article 4:
Any owner of a fishing boat, the holder of a fishing licence issued by the Guinean
competent authority who refuels or attempts to be refuelled by means other than those
legally authorised, will be punished by 1 to 3 years imprisonment and a fine equal to twice
the value of the quantity of fuel purchased.

Article 6:
Whoever illegally imports fuel into the national territory will be subject to 6 months to
2 years imprisonment, the confiscation of the means of transport, the confiscation of the
items used to conceal the illegal importation and a joint and several fine equal to double the
value of the subject of the illegal importation where this offence is committed by less than
three individuals.

Article 8:
Where the misdemeanor referred to in article 6 of this Law has been committed by a group
of more than 6 individuals, whether or not they are in possession of the subject of the illegal
importation, the offenders will be subject to a sentence of imprisonment from 2 to 5 years, a
fine equal to four times the value of the confiscated items in addition to the additional
penalties provided for under article 6 of this Law.

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113. Article 40 of the Merchant Marine Code reads (in translation) as follows:

The Republic of Guinea exercises, within the exclusive economic zone which extends
from the limit of the territorial sea to 188 nautical miles beyond that limit, sovereign
rights concerning the exploration and exploitation, conservation and management of the
natural resources, biological or non-biological, of the sea beds and their sub-soils, of the
waters lying underneath, as well as the rights concerning other activities bearing on the
exploration and exploitation of the zone for economic purposes.

114. Articles 1 and 34, paragraphs 1 and 2, of the Customs Code read (in translation) as
follows:

Article 1
The customs territory includes the whole of the national territory, the islands located
along the coastline and the Guinea territorial waters.
However, free zones, exempt from all or some of the customs legislation and regulations,
may be created within the customs territory.

Article 34
1. The customs radius includes a marine area and a terrestrial area.
2. The marine area lies between the coastline and an outer limit located at sea
250 kilometres from the coast.

115. Articles 361 and 363 of the Penal Code read (in translation) as follows:

Article 361
Persons who commit or who conceal or abet in the commission of the following offences
shall be punished by a term of imprisonment of 5 to 10 years and the forfeiture of all their
property:

1. any fraudulent import or export of currency which is legal tender in Guinea, of Guinean
agricultural and industrial products and of merchandise of all kinds;
2. any illegal possession of foreign currency and any exchange of such currency otherwise
than through legally authorized agents;
3. any fraudulent export of masks, figurines and the like which are products of Guinean
handicraft or industry.

Article 363
The killing or injuring by law-enforcement officers of offenders who are found in flagrante
delicto smuggling at the border and who fail to obey customary summons shall be neither a
felony nor a misdemeanor.

116. The main charge against the Saiga was that it violated article 1 of Law L/94/007 by
importing gas oil into the customs radius (rayon des douanes) of Guinea. Guinea justifies this
action by maintaining that the prohibition in article 1 of Law L/94/007 “can be applied for the
purpose of controlling and suppressing the sale of gas oil to fishing vessels in the customs radius

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according to article 34 of the Customs Code of Guinea”. In support of this contention, Guinea
declares that it is the consistent practice and the settled view of the courts of Guinea that the term
“Guinea”, referred to in article 1 of the Law L/94/007, includes the customs radius, and that,
consequently, the prohibition of the import of gas oil into Guinea extends to the importation of
such oil into any part of the customs radius. According to Guinea, the fact that the Saiga
violated the laws of Guinea has been authoritatively established by the Court of Appeal. In its
view, that decision cannot be questioned in this case because the Tribunal is not competent to
consider the question whether the internal legislation of Guinea has been properly applied by the
Guinean authorities or its courts.

117. Saint Vincent and the Grenadines contends that the Saiga did not violate Law L/94/007
because it did not import oil into Guinea, as alleged by the authorities of Guinea. It points out
that article 1 of the Customs Code defines the “customs territory” of Guinea as including “the
whole of the national territory, the islands located along the coastline and the Guinean territorial
waters”. It notes also that, according to articles 33 and 34 of the Customs Code, the customs
radius is not part of the customs territory of Guinea but only a “special area of surveillance” and
that Guinea is not entitled to enforce its customs laws in it. Saint Vincent and the Grenadines,
therefore, argues that the Saiga could not have contravened Law L/94/007 since it did not at any
time enter the territorial sea of Guinea or introduce, directly or indirectly, any gas oil into the
customs territory of Guinea, as defined by the Customs Code.

118. For these reasons, Saint Vincent and the Grenadines maintains that, on a correct
interpretation of Law L/94/007 read with articles 1 and 34 of the Customs Code, the Saiga did
not violate any laws of Guinea when it supplied gas oil to the fishing vessels in the exclusive
economic zone of Guinea.

119. In the alternative, Saint Vincent and the Grenadines contends that the extension of the
customs laws of Guinea to the exclusive economic zone is contrary to the Convention. It argues
that article 56 of the Convention does not give the right to Guinea to extend the application of its
customs laws and regulations to that zone. It therefore contends that Guinea’s customs laws
cannot be applied to ships flying its flag in the exclusive economic zone. Consequently, the
measures taken by Guinea against the Saiga were unlawful.

120. In the view of the Tribunal, there is nothing to prevent it from considering the question
whether or not, in applying its laws to the Saiga in the present case, Guinea was acting in
conformity with its obligations towards Saint Vincent and the Grenadines under the Convention and
general international law. In its Judgment in the Case Concerning Certain German Interests in
Polish Upper Silesia, the Permanent Court of International Justice stated:

From the standpoint of International Law and of the Court which is its organ, municipal
laws are merely facts which express the will and constitute the activities of States, in the
same manner as do legal decisions or administrative measures. The Court is certainly not
called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s
giving judgment on the question whether or not, in applying that law, Poland is acting in
conformity with its obligations towards Germany under the Geneva Convention.

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 (Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J.,
Series A, No. 7, p. 19)

121. A denial of the competence of the Tribunal to examine the applicability and scope of
national law is even less acceptable in the framework of certain provisions of the Convention.
One such provision, which is also relied upon by Guinea, is article 58, paragraph 3, which reads
as follows:

In exercising their rights and performing their duties under this Convention in the
exclusive economic zone, States shall have due regard to the rights and duties of the
coastal State and shall comply with the laws and regulations adopted by the coastal State
in accordance with the provisions of this Convention and other rules of international law
in so far as they are not incompatible with this Part.

Under this provision, the rights and obligations of coastal and other States under the Convention
arise not just from the provisions of the Convention but also from national laws and regulations
“adopted by the coastal State in accordance with the provisions of this Convention”. Thus, the
Tribunal is competent to determine the compatibility of such laws and regulations with the
Convention.

122. The Tribunal notes that Guinea produces no evidence in support of its contention that the
laws cited by it provide a basis for the action taken against the Saiga beyond the assertion that it
reflects the consistent practice of its authorities, supported by its courts. Even if it is conceded
that the laws of Guinea which the Saiga is alleged to have violated are applicable in the manner that
is claimed by Guinea, the question remains whether these laws, as interpreted and applied by
Guinea, are compatible with the Convention.

123. Saint Vincent and the Grenadines claims that, in applying its customs laws to the Saiga in
its customs radius, which includes parts of the exclusive economic zone, Guinea acted contrary
to the Convention. It contends that in the exclusive economic zone Guinea is not entitled to
exercise powers which go beyond those provided for in articles 56 and 58 of the Convention. It
further asserts that Guinea violated its rights to enjoy the freedom of navigation or other
internationally lawful uses of the sea in the exclusive economic zone, since the supply of gas oil
by the Saiga falls within the exercise of those rights.

124. Guinea denies that the application of its customs and contraband laws in its customs
radius is contrary to the Convention or in violation of any rights of Saint Vincent and the
Grenadines. It maintains that it is entitled to apply its customs and contraband laws to prevent
the unauthorized sale of gas oil to fishing vessels operating in its exclusive economic zone. It
further maintains that such supply is not part of the freedom of navigation under the Convention
or an internationally lawful use of the sea related to the freedom of navigation but a commercial
activity and that it does not, therefore, fall within the scope of article 58 of the Convention. For
that reason, it asserts that the Guinean action against the Saiga was taken not because the ship
was navigating in the exclusive economic zone of Guinea but because it was engaged in
“unwarranted commercial activities”.

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125. Guinea further argues that the exclusive economic zone is not part of the high seas or of
the territorial sea, but a zone with its own legal status (a sui generis zone). From this it
concludes that rights or jurisdiction in the exclusive economic zone, which the Convention does
not expressly attribute to the coastal States, do not automatically fall under the freedom of the
high seas.

126. The Tribunal needs to determine whether the laws applied or the measures taken by
Guinea against the Saiga are compatible with the Convention. In other words, the question is
whether, under the Convention, there was justification for Guinea to apply its customs laws in
the exclusive economic zone within a customs radius extending to a distance of 250 kilometres
from the coast.

127. The Tribunal notes that, under the Convention, a coastal State is entitled to apply customs
laws and regulations in its territorial sea (articles 2 and 21). In the contiguous zone, a coastal
State

may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed within its territory
or territorial sea.
(article 33, paragraph 1)

In the exclusive economic zone, the coastal State has jurisdiction to apply customs laws and
regulations in respect of artificial islands, installations and structures (article 60, paragraph 2). In
the view of the Tribunal, the Convention does not empower a coastal State to apply its customs
laws in respect of any other parts of the exclusive economic zone not mentioned above.

128. Guinea further argues that the legal basis of its law prohibiting the supply of gas oil to
fishing vessels in the customs radius is to be found in article 58 of the Convention. It relies on
the reference, contained in paragraph 3 of that article, to the “other rules of international law” to
justify the application and enforcement of its customs and contraband laws to the customs radius.
These “other rules of international law” are variously described by Guinea as “the inherent right
to protect itself against unwarranted economic activities in its exclusive economic zone that
considerably affect its public interest”, or as the “doctrine of necessity”, or as “the customary
principle of self-protection in case of grave and imminent perils which endanger essential aspects
of its public interest”.

129. The Tribunal finds it necessary to distinguish between the two main concepts referred to
in the submissions of Guinea. The first is a broad notion of “public interest” or “self-protection”
which Guinea invokes to expand the scope of its jurisdiction in the exclusive economic zone, and
the second is “state of necessity” which it relies on to justify measures that would otherwise be
wrongful under the Convention.

130. The main public interest which Guinea claims to be protecting by applying its customs laws
to the exclusive economic zone is said to be the “considerable fiscal losses a developing country like

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Guinea is suffering from illegal off-shore bunkering in its exclusive economic zone”. Guinea
makes references also to fisheries and environmental interests. In effect, Guinea’s contention is that
the customary international law principle of “public interest” gives it the power to impede
“economic activities that are undertaken [in its exclusive economic zone] under the guise of
navigation but are different from communication”.

131. According to article 58, paragraph 3, of the Convention, the “other rules of international
law” which a coastal State is entitled to apply in the exclusive economic zone are those which are
not incompatible with Part V of the Convention. In the view of the Tribunal, recourse to the
principle of “public interest”, as invoked by Guinea, would entitle a coastal State to prohibit any
activities in the exclusive economic zone which it decides to characterize as activities which affect
its economic “public interest” or entail “fiscal losses” for it. This would curtail the rights of other
States in the exclusive economic zone. The Tribunal is satisfied that this would be incompatible
with the provisions of articles 56 and 58 of the Convention regarding the rights of the coastal State
in the exclusive economic zone.

132. It remains for the Tribunal to consider whether the otherwise wrongful application by
Guinea of its customs laws to the exclusive economic zone can be justified under general
international law by Guinea’s appeal to “state of necessity”.

133. In the Case Concerning the Gabčíkovo-Nagymaros Project (Gabčíkovo-Nagymaros

Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, pp. 40 and 41, paragraphs 51
and 52), the International Court of Justice noted with approval two conditions for the defence
based on “state of necessity” which in general international law justifies an otherwise wrongful
act. These conditions, as set out in article 33, paragraph 1, of the International Law
Commission’s Draft Articles on State Responsibility, are:

(a) the act was the only means of safeguarding an essential interest of the State against
a grave and imminent peril; and

(b) the act did not seriously impair an essential interest of the State towards which the
obligation existed.

134. In endorsing these conditions, the Court stated that they “must be cumulatively satisfied”
and that they “reflect customary international law”.

135. No evidence has been produced by Guinea to show that its essential interests were in
grave and imminent peril. But, however essential Guinea’s interest in maximizing its tax
revenue from the sale of gas oil to fishing vessels, it cannot be suggested that the only means of
safeguarding that interest was to extend its customs laws to parts of the exclusive economic zone.

136. The Tribunal, therefore, finds that, by applying its customs laws to a customs radius
which includes parts of the exclusive economic zone, Guinea acted in a manner contrary to the
Convention. Accordingly, the arrest and detention of the Saiga, the prosecution and conviction
of its Master, the confiscation of the cargo and the seizure of the ship were contrary to the
Convention.

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137. In their submissions, both parties requested the Tribunal to make declarations regarding
the rights of coastal States and of other States in connection with offshore bunkering, i.e. the sale
of gas oil to vessels at sea. The Tribunal notes that there is no specific provision on the subject
in the Convention. Both parties appear to agree that, while the Convention attributes certain
rights to coastal States and other States in the exclusive economic zone, it does not follow
automatically that rights not expressly attributed to the coastal State belong to other States or,
alternatively, that rights not specifically attributed to other States belong as of right to the coastal
State. Saint Vincent and the Grenadines asks the Tribunal to adjudge and declare that bunkering
in the exclusive economic zone by ships flying its flag constitutes the exercise of the freedom of
navigation and other internationally lawful uses of the sea related to the freedom of navigation,
as provided for in articles 56 and 58 of the Convention. On the other hand, Guinea maintains
that “bunkering” is not an exercise of the freedom of navigation or any of the internationally
lawful uses of the sea related to freedom of navigation, as provided for in the Convention, but a
commercial activity. Guinea further maintains that bunkering in the exclusive economic zone
may not have the same status in all cases and suggests that different considerations might apply,
for example, to bunkering of ships operating in the zone, as opposed to the supply of oil to ships
that are in transit.

138. The Tribunal considers that the issue that needed to be decided was whether the actions
taken by Guinea were consistent with the applicable provisions of the Convention. The Tribunal
has reached a decision on that issue on the basis of the law applicable to the particular
circumstances of the case, without having to address the broader question of the rights of coastal
States and other States with regard to bunkering in the exclusive economic zone. Consequently,
it does not make any findings on that question.

Hot pursuit

139. Saint Vincent and the Grenadines contends that, in arresting the Saiga, Guinea did not
lawfully exercise the right of hot pursuit under article 111 of the Convention. It argues that since
the Saiga did not violate the laws and regulations of Guinea applicable in accordance with the
Convention, there was no legal basis for the arrest. Consequently, the authorities of Guinea did
not have “good reason” to believe that the Saiga had committed an offence that justified hot
pursuit in accordance with the Convention.

140. Saint Vincent and the Grenadines asserts that, even if the Saiga violated the laws and
regulations of Guinea as claimed, its arrest on 28 October 1997 did not satisfy the other
conditions for hot pursuit under article 111 of the Convention. It notes that the alleged pursuit
was commenced while the ship was well outside the contiguous zone of Guinea. The Saiga was
first detected (by radar) in the morning of 28 October 1997 when the ship was either outside the
exclusive economic zone of Guinea or about to leave that zone. The arrest took place after the
ship had crossed the southern border of the exclusive economic zone of Guinea.

141. Saint Vincent and the Grenadines further asserts that, wherever and whenever the pursuit
was commenced, it was interrupted. It also contends that no visual and auditory signals were
given to the ship prior to the commencement of the pursuit, as required by article 111 of the

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Convention.

142. Guinea denies that the pursuit was vitiated by any irregularity and maintains that the
officers engaged in the pursuit complied with all the requirements set out in article 111 of the
Convention. In some of its assertions, Guinea contends that the pursuit was commenced on
27 October 1997 soon after the authorities of Guinea had information that the Saiga had
committed or was about to commit violations of the customs and contraband laws of Guinea and
that the pursuit was continued throughout the period until the ship was spotted and arrested in the
morning of 28 October 1997. In other assertions, Guinea contends that the pursuit commenced
in the early morning of 28 October 1997 when the Saiga was still in the exclusive economic zone
of Guinea. In its assertions, Guinea relies on article 111, paragraph 2, of the Convention.

143. Guinea states that at about 0400 hours on 28 October 1997 the large patrol boat P328 sent
out radio messages to the Saiga ordering it to stop and that they were ignored. It also claims that
the small patrol boat P35 gave auditory and visual signals to the Saiga when it came within sight
and hearing of the ship. The Guinean officers who arrested the ship testified that the patrol boat
sounded its siren and switched on its blue revolving light signals.

144. Guinea admits that the arrest took place outside the exclusive economic zone of Guinea.
However, it points out that since the place of arrest was not in the territorial sea either of the
ship’s flag State or of another State, there was no breach of article 111 of the Convention.

145. The relevant provisions of article 111 of the Convention which have been invoked by the
parties are as follows:

Article 111
Right of hot pursuit

1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of
the coastal State have good reason to believe that the ship has violated the laws and
regulations of that State. Such pursuit must be commenced when the foreign ship or one
of its boats is within the internal waters, the archipelagic waters, the territorial sea or the
contiguous zone of the pursuing State, and may only be continued outside the territorial
sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that,
at the time when the foreign ship within the territorial sea or the contiguous zone receives
the order to stop, the ship giving the order should likewise be within the territorial sea or
the contiguous zone. If the foreign ship is within a contiguous zone, as defined in
article 33, the pursuit may only be undertaken if there has been a violation of the rights
for the protection of which the zone was established.

2. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive
economic zone or on the continental shelf, including safety zones around continental
shelf installations, of the laws and regulations of the coastal State applicable in
accordance with this Convention to the exclusive economic zone or the continental shelf,
including such safety zones.

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 3. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of
its own State or of a third State.

4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by
such practicable means as may be available that the ship pursued or one of its boats or
other craft working as a team and using the ship pursued as a mother ship is within the
limits of the teritorial sea, or, as the case may be, within the contiguous zone or the
exclusive economic zone or above the continental shelf. The pursuit may only be
commenced after a visual or auditory signal to stop has been given at a distance which
enables it to be seen or heard by the foreign ship.

146. The Tribunal notes that the conditions for the exercise of the right of hot pursuit under
article 111 of the Convention are cumulative; each of them has to be satisfied for the pursuit to
be legitimate under the Convention. In this case, the Tribunal finds that several of these
conditions were not fulfilled.

147. With regard to the pursuit alleged to have commenced on 27 October 1997, the evidence
before the Tribunal indicates that, at the time the Order for the Joint Mission of the Customs and
Navy of Guinea was issued, the authorities of Guinea, on the basis of information available to
them, could have had no more than a suspicion that a tanker had violated the laws of Guinea in
the exclusive economic zone. The Tribunal also notes that, in the circumstances, no visual or
auditory signals to stop could have been given to the Saiga. Furthermore, the alleged pursuit was
interrupted. According to the evidence given by Guinea, the small patrol boat P35 that was sent
out on 26 October 1997 on a northward course to search for the Saiga was recalled when
information was received that the Saiga had changed course. This recall constituted a clear
interruption of any pursuit, whatever legal basis might have existed for its commencement in the
first place.

148. As far as the pursuit alleged to have commenced on 28 October 1998 is concerned, the
evidence adduced by Guinea does not support its claim that the necessary auditory or visual
signals to stop were given to the Saiga prior to the commencement of the alleged pursuit, as
required by article 111, paragraph 4, of the Convention. Although Guinea claims that the small
patrol boat (P35) sounded its siren and turned on its blue revolving light signals when it came within
visual and hearing range of the Saiga, both the Master who was on the bridge at the time and
Mr. Niasse who was on the deck, categorically denied that any such signals were given. In any
case, any signals given at the time claimed by Guinea cannot be said to have been given at the
commencement of the alleged pursuit.

149. The Tribunal has already concluded that no laws or regulations of Guinea applicable in
accordance with the Convention were violated by the Saiga. It follows that there was no legal
basis for the exercise of the right of hot pursuit by Guinea in this case.

150. For these reasons, the Tribunal finds that Guinea stopped and arrested the Saiga on
28 October 1997 in circumstances which did not justify the exercise of the right of hot pursuit in
accordance with the Convention.

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151. The Tribunal notes that Guinea, in its pleadings and submissions, suggests that the
actions against the Saiga could, at least in part, be justified on the ground that the Saiga supplied
gas oil to the fishing vessels in the contiguous zone of the Guinean island of Alcatraz. However,
in the course of the oral proceedings, Guinea stated:

[T]he bunkering operation of the ship in the Guinean contiguous zone is also of no
relevance in this context, although it may be relevant to the application of the criminal
law. The relevant area here is the customs radius. This is a functional zone established
by Guinean customs law within the realm of the contiguous zone and a part of the
Guinean exclusive economic zone. One can describe it as a limited customs protection
zone based on the principles of customary international law which are included in the
exclusive economic zone but which are not a part of the territory of Guinea.

152. The Tribunal has not based its consideration of the question of the legality of the pursuit
of the Saiga on the suggestion of Guinea that a violation of its customs laws occurred in the
contiguous zone. The Tribunal would, however, note that its conclusion on this question would
have been the same if Guinea had based its action against the Saiga solely on the ground of an
infringement of its customs laws in the contiguous zone. For, even in that case, the conditions
for the exercise of the right of hot pursuit, as required under article 111 of the Convention, would
not have been satisfied for the reasons given in paragraphs 147 and 148.

Use of force

153. Saint Vincent and the Grenadines claims that Guinea used excessive and unreasonable
force in stopping and arresting the Saiga. It notes that the Saiga was an unarmed tanker almost
fully laden with gas oil, with a maximum speed of 10 knots. It also notes that the authorities of
Guinea fired at the ship with live ammunition, using solid shots from large-calibre automatic
guns.

154. Guinea denies that the force used in boarding, stopping and arresting the Saiga was either
excessive or unreasonable. It contends that the arresting officers had no alternative but to use
gunfire because the Saiga refused to stop after repeated radio messages to it to stop and in spite of
visual and auditory signals from the patrol boat P35. Guinea maintains that gunfire was used as a
last resort, and denies that large-calibre ammunition was used. Guinea places the responsibility for
any damage resulting from the use of force on the Master and crew of the ship.

155. In considering the force used by Guinea in the arrest of the Saiga, the Tribunal must take
into account the circumstances of the arrest in the context of the applicable rules of international
law. Although the Convention does not contain express provisions on the use of force in the arrest
of ships, international law, which is applicable by virtue of article 293 of the Convention, requires
that the use of force must be avoided as far as possible and, where force is unavoidable, it must
not go beyond what is reasonable and necessary in the circumstances. Considerations of
humanity must apply in the law of the sea, as they do in other areas of international law.

156. These principles have been followed over the years in law enforcement operations at sea.
The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop,

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using internationally recognized signals. Where this does not succeed, a variety of actions may be
taken, including the firing of shots across the bows of the ship. It is only after the appropriate
actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning
must be issued to the ship and all efforts should be made to ensure that life is not endangered (S.S.
“I’m Alone” case (Canada/United States, 1935), U.N.R.I.A.A., Vol. III, p. 1609; The Red Crusader
case (Commission of Enquiry, Denmark - United Kingdom, 1962), I.L.R., Vol. 35, p. 485). The
basic principle concerning the use of force in the arrest of a ship at sea has been reaffirmed by the
Agreement for the Implementation of the Provisions of the United Nations Convention on the
Law of the Sea of 10 December 1982 Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks. Article 22, paragraph 1(f), of the
Agreement states:

1. The inspecting State shall ensure that its duly authorized inspectors:
...
(f) avoid the use of force except when and to the degree necessary to ensure the
safety of the inspectors and where the inspectors are obstructed in the execution
of their duties. The degree of force used shall not exceed that reasonably required
in the circumstances.

157. In the present case, the Tribunal notes that the Saiga was almost fully laden and was low in
the water at the time it was approached by the patrol vessel. Its maximum speed was 10 knots.
Therefore it could be boarded without much difficulty by the Guinean officers. At one stage in the
proceedings Guinea sought to justify the use of gunfire with the claim that the Saiga had attempted
to sink the patrol boat. During the hearing, the allegation was modified to the effect that the danger
of sinking to the patrol boat was from the wake of the Saiga and not the result of a deliberate
attempt by the ship. But whatever the circumstances, there is no excuse for the fact that the officers
fired at the ship itself with live ammunition from a fast-moving patrol boat without issuing any of
the signals and warnings required by international law and practice.

158. The Guinean officers also used excessive force on board the Saiga. Having boarded the
ship without resistance, and although there is no evidence of the use or threat of force from the
crew, they fired indiscriminately while on the deck and used gunfire to stop the engine of the ship.
In using firearms in this way, the Guinean officers appeared to have attached little or no importance
to the safety of the ship and the persons on board. In the process, considerable damage was done to
the ship and to vital equipment in the engine and radio rooms. And, more seriously, the
indiscriminate use of gunfire caused severe injuries to two of the persons on board.

159. For these reasons, the Tribunal finds that Guinea used excessive force and endangered
human life before and after boarding the Saiga, and thereby violated the rights of Saint Vincent
and the Grenadines under international law.

Schedule of summons

160. Saint Vincent and the Grenadines requests the Tribunal to find that Guinea violated its
rights under international law by citing Saint Vincent and the Grenadines as “civilly liable” in
the schedule of summons issued in connection with the criminal proceedings against the Master

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of the Saiga before the Tribunal of First Instance of Conakry.

161. The Tribunal notes Guinea’s explanation that the citation of Saint Vincent and the
Grenadines in the schedule of summons did not have any legal significance under the law of
Guinea. Moreover, the schedule of summons did not feature in the judicial proceedings against
the Master and there is no evidence that it was served on any officials of Saint Vincent and the
Grenadines.

162. While the Tribunal considers that the naming of Saint Vincent and the Grenadines in
connection with the criminal proceedings against the Master of the Saiga was inappropriate, it
does not find that this action by itself constitutes a violation of any right of Saint Vincent and the
Grenadines under international law.

Compliance with the Judgment of 4 December 1997

163. Saint Vincent and the Grenadines requests the Tribunal to find that Guinea violated
articles 292, paragraph 4, and 296 of the Convention by failing to release the Saiga promptly
after the posting of the security, in the form of a bank guarantee, in compliance with the
Judgment of the Tribunal of 4 December 1997.

164. It is common ground between the parties that the bank guarantee was communicated to
the Agent of Guinea on 10 December 1997, six days after the delivery of the Judgment of the
Tribunal on 4 December 1997. It is also not contested that the Saiga was not able to leave
Conakry until 28 February 1998. There was, therefore, a delay of at least 80 days between the
date on which the bank guarantee was communicated by Saint Vincent and the Grenadines to
Guinea and the release of the ship and its crew.

165. The Tribunal notes that the ship was released on 28 February 1998. The release was
expressly stated in the Deed of Release to be in execution of the Judgment of 4 December 1997.
A release of the ship 80 days after the posting of the bond cannot be considered as a prompt
release. However, a number of factors contributed to the delay in releasing the ship and not all of
them can be said to be due to the fault of Guinea. Therefore, the Tribunal does not find that, in
the circumstances of this case, Guinea failed to comply with the Judgment of 4 December 1997.

166. Accordingly, the Tribunal does not find that Guinea failed to comply with articles 292,
paragraph 4, and 296 of the Convention.

Reparation

167. Saint Vincent and the Grenadines requests the Tribunal to declare that Guinea is liable,
under article 111, paragraph 8, of the Convention and under international law which applies by
virtue of article 304 of the Convention, for damages for violation of its rights under the
Convention.

168. Saint Vincent and the Grenadines claims compensation for material damage in respect of
natural and juridical persons. Compensation is claimed in respect of damage to the ship,

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financial losses of the shipowners, the operators of the Saiga, the owners of the cargo, and the
Master, members of the crew and other persons on board the ship. Compensation is also claimed
in respect of loss of liberty and personal injuries, including pain and suffering. Saint Vincent and
the Grenadines requests that interest be given at the rate of 8% on the damages awarded for
material damage.

169. Article 111, paragraph 8, of the Convention provides:

Where a ship has been stopped or arrested outside the territorial sea in circumstances
which do not justify the exercise of the right of hot pursuit, it shall be compensated for
any loss or damage that may have been thereby sustained.

Reparation may also be due under international law as provided for in article 304 of the
Convention, which provides:

The provisions of this Convention regarding responsibility and liability for damage are
without prejudice to the application of existing rules and the development of further rules
regarding responsibility and liability under international law.

170. It is a well-established rule of international law that a State which suffers damage as a
result of an internationally wrongful act by another State is entitled to obtain reparation for the
damage suffered from the State which committed the wrongful act and that “reparation must, as
far as possible, wipe out all the consequences of the illegal act and reestablish the situation which
would, in all probability, have existed if that act had not been committed” (Factory at Chorzów,
Merits, Judgment No.13, 1928, P.C.I.J., Series A, No. 17, p. 47).

171. Reparation may be in the form of “restitution in kind, compensation, satisfaction and
assurances and guarantees of non-repetition, either singly or in combination” (article 42,
paragraph 1, of the Draft Articles of the International Law Commission on State Responsibility).
Reparation may take the form of monetary compensation for economically quantifiable damage
as well as for non-material damage, depending on the circumstances of the case. The
circumstances include such factors as the conduct of the State which committed the wrongful act
and the manner in which the violation occurred. Reparation in the form of satisfaction may be
provided by a judicial declaration that there has been a violation of a right.

172. In the view of the Tribunal, Saint Vincent and the Grenadines is entitled to reparation for
damage suffered directly by it as well as for damage or other loss suffered by the Saiga,
including all persons involved or interested in its operation. Damage or other loss suffered by
the Saiga and all persons involved or interested in its operation comprises injury to persons,
unlawful arrest, detention or other forms of ill-treatment, damage to or seizure of property and
other economic losses, including loss of profit.

173. The Tribunal considers it generally fair and reasonable that interest is paid in respect of
monetary losses, property damage and other economic losses. However, it is not necessary to
apply a uniform rate of interest in all instances. In the present case, the Tribunal has set an
interest rate of 6% in respect of award of compensation. In determining this rate, account has

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been taken, inter alia, of commercial conditions prevailing in the countries where the expenses
were incurred or the principal operations of the party being compensated are located. A higher
rate of 8% is adopted in respect of the value of the gas oil to include loss of profit. A lower rate
of interest of 3% is adopted for compensation for detention and for injury, pain and suffering,
disability and psychological damage, payable from three months after the date of the Judgment.

174. With regard to the amounts of compensation to be awarded, Saint Vincent and the
Grenadines has submitted substantial documentation. Guinea challenges the validity of some
claims and the reasonableness of the amounts presented. It also questions the evidence
submitted in respect of some of the claims.

175. After a careful scrutiny of invoices and other documents submitted, the Tribunal decides
to award compensation in the total amount of US$ 2,123,357 (United States Dollars Two Million
One Hundred and Twenty-Three Thousand Three Hundred and Fifty-Seven) with interest, as
indicated below:

(a) Damage to the Saiga, including costs of repairs, in the sum of US$ 202,764; with interest at the
rate of 6%, payable from 31 March 1998;

(b) Loss with respect to charter hire of the Saiga, in the sum of US$ 650,250; with interest at the
rate of 6%, payable from 1 January 1998;

(c) Costs related to the detention of the Saiga in Conakry, in the sum of US$ 256,892; with interest
at the rate of 6%, payable from 1 January 1998;

(d) Value of 4,941.322 metric tons of gas oil discharged in Conakry, in the sum of US$ 875,256;
with interest at the rate of 8%, payable from 28 October 1997;

(e) Detention of Captain Orlov, the Master, in the sum of US$ 17,750; with interest at the rate of
3%, payable from 1 October 1999;

(f) Detention of members of the crew and other persons on board the Saiga, in the sum of
US$ 76,000, computed as specified in the Annex; with interest at the rate of 3%, payable from 1
October 1999;

(g) Medical expenses of Second Officer Klyuyev, in the sum of US$ 3,130; with interest at the rate
of 6%, payable from 1 January 1998;

(h) Medical expenses of Mr. Djibril Niasse, in the sum of US$ 6,315; with interest at the rate of
6%, payable from 1 January 1998;

(i) Injury, pain and suffering of Second Officer Klyuyev, in the sum of US$ 10,000; with interest at
the rate of 3%, payable from 1 October 1999;

(j) Injury, pain, suffering, disability and psychological damage of Mr. Djibril Niasse, in the sum of
US$ 25,000; with interest at the rate of 3%, payable from 1 October 1999.

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176. With regard to the claims of Saint Vincent and the Grenadines for compensation for
violation of its rights in respect of ships flying its flag, the Tribunal has declared in paragraphs
136 and 159 that Guinea acted wrongfully and violated the rights of Saint Vincent and the
Grenadines in arresting the Saiga in the circumstances of this case and in using excessive force.
The Tribunal considers that these declarations constitute adequate reparation.

177. Saint Vincent and the Grenadines requests the Tribunal to award compensation for the
loss of registration revenue resulting from the illegal arrest of the Saiga by Guinea, and for the
expenses resulting from the time lost by its officials in dealing with the arrest and detention of
the ship and its crew. The Tribunal notes that no evidence has been produced by Saint Vincent
and the Grenadines that the arrest of the Saiga caused a decrease in registration activity under its
flag, with resulting loss of revenue. The Tribunal considers that any expenses incurred by Saint
Vincent and the Grenadines in respect of its officials must be borne by it as having been incurred
in the normal functions of a flag State. For these reasons, the Tribunal does not accede to these
requests for compensation made by Saint Vincent and the Grenadines.

Financial security

178. The submissions of the parties raise the question of action to be taken in respect of the
security provided by Saint Vincent and the Grenadines as the condition for the release of the
Saiga and her crew, pursuant to the Judgment of the Tribunal of 4 December 1997. In its Reply,
Saint Vincent and the Grenadines requests that Guinea be ordered to “repay to St. Vincent and
the Grenadines the sum realized on the sale of the cargo of the M.V. Saiga”. In its submissions
in the Memorial and Reply, Saint Vincent and the Grenadines requested that the bank guarantee
it had provided to Guinea as part of the security ordered by the Tribunal be returned.

179. When it ordered Guinea to release the Saiga and its crew from detention in its Judgment
of 4 December 1997, the Tribunal stated that the release should be “upon the posting of a
reasonable bond or security”. The Judgment further ordered that the “security shall consist of:
(1) the amount of gasoil discharged from the M/V Saiga; and (2) the amount of 400,000 United
States dollars, to be posted in the form of a letter of credit or bank guarantee or, if agreed by the
parties, in any other form”. Thus, the gas oil discharged from the Saiga and the bank guarantee
provided by Saint Vincent and the Grenadines were two elements of the “reasonable bond or
other financial security” that Saint Vincent and the Grenadines was to provide for the release of
the ship and its crew, as required by article 292, paragraph 4, of the Convention.

180. The Tribunal must emphasize that the M/V “SAIGA” (No. 2) case is distinct from the
prompt release proceedings and that the Judgment of 4 December 1997 is not in issue in the
present case. However, Saint Vincent and the Grenadines has identified the security provided by
it as one of the losses for which it seeks reparation. The Tribunal has awarded damages for the
part of the loss which is due to the discharge of the gas oil in Conakry. It deems it necessary also
to take appropriate action with respect to the bank guarantee. The Tribunal considers that the
bank guarantee provided by Saint Vincent and the Grenadines as part of the security is to be
treated as no longer effective. Accordingly, the relevant document should be returned by Guinea
forthwith to Saint Vincent and the Grenadines.

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Costs

181. In the 1998 Agreement, the parties agreed that the Tribunal “shall be entitled to make an
award on the legal and other costs incurred by the successful party in the proceedings before the
International Tribunal”. In the written pleadings and final submissions, each party has requested
the Tribunal to award legal and other costs to it. In addition, in its final submissions in the
proceedings on the Request for provisional measures, Guinea requested the Tribunal to award
costs to it in respect of those proceedings.

182. The rule in respect of costs in proceedings before the Tribunal, as set out in article 34 of
its Statute, is that each party shall bear its own costs, unless the Tribunal decides otherwise. In
the present case, the Tribunal sees no need to depart from the general rule that each party shall
bear its own costs. Accordingly, with respect to both phases of the present proceedings, it
decides that each party shall bear its own costs.

Operative provisions

183. For the above reasons, the Tribunal

(1) Unanimously,

Finds that it has jurisdiction over the dispute.

(2) Unanimously,

Finds that Guinea is not debarred from raising objections to the admissibility of the claims
of Saint Vincent and the Grenadines.

(3) By 18 votes to 2,

Rejects the objection to the admissibility of the claims of Saint Vincent and the Grenadines
based on Guinea’s contention that the Saiga was not registered in Saint Vincent and the Grenadines
at the time of its arrest;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, VUKAS, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges WARIOBA, NDIAYE.

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(4) By 18 votes to 2,

Rejects the objection to the admissibility of the claims of Saint Vincent and the Grenadines
based on Guinea’s contention that there was no genuine link between Saint Vincent and the
Grenadines and the Saiga at the time of its arrest;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, VUKAS, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges WARIOBA, NDIAYE.

(5) By 18 votes to 2,

Rejects the objection to the admissibility of certain of the claims of Saint Vincent and the
Grenadines based on Guinea’s contention that local remedies were not exhausted;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, VUKAS, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges WARIOBA, NDIAYE.

(6) By 18 votes to 2,

Rejects the objection to the admissibility of certain of the claims of Saint Vincent and the
Grenadines based on Guinea’s contention that the persons in respect of whom Saint Vincent and the
Grenadines brought the claims were not its nationals;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, VUKAS, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges WARIOBA, NDIAYE.

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(7) By 18 votes to 2,

Decides that Guinea violated the rights of Saint Vincent and the Grenadines under the
Convention in arresting the Saiga, and in detaining the Saiga and members of its crew, in
prosecuting and convicting its Master and in seizing the Saiga and confiscating its cargo;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, VUKAS, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges WARIOBA, NDIAYE.

(8) By 18 votes to 2,

Decides that in arresting the Saiga Guinea acted in contravention of the provisions of the
Convention on the exercise of the right of hot pursuit and thereby violated the rights of Saint
Vincent and the Grenadines;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, VUKAS, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges WARIOBA, NDIAYE.

(9) By 18 votes to 2,

Decides that while stopping and arresting the Saiga Guinea used excessive force contrary to
international law and thereby violated the rights of Saint Vincent and the Grenadines;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, VUKAS, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges WARIOBA, NDIAYE.

(10) By 18 votes to 2,

Rejects the claim by Saint Vincent and the Grenadines that Guinea violated its rights under
international law by naming it as civilly responsible to be summoned in a schedule of summons;

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IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,
CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, VUKAS, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges WARIOBA, NDIAYE.

(11) By 17 votes to 3,

Rejects the claim by Saint Vincent and the Grenadines that Guinea violated its rights under
the Convention by failing to release promptly the Saiga and members of its crew in compliance with
the Judgment of the Tribunal of 4 December 1997;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges VUKAS, WARIOBA, NDIAYE.

(12) By 18 votes to 2,

Decides that Guinea shall pay compensation to Saint Vincent and the Grenadines in the sum
of US$ 2,123,357 (United States Dollars Two Million One Hundred and Twenty-Three Thousand
Three Hundred and Fifty-Seven) with interest, as indicated in paragraph 175;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

CAMINOS, MAROTTA RANGEL, YANKOV, KOLODKIN, PARK,
BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL,
ANDERSON, VUKAS, LAING, TREVES, MARSIT, EIRIKSSON;

AGAINST: Judges WARIOBA, NDIAYE.

(13) By 13 votes to 7,

Decides that each party shall bear its own costs;

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO,

MAROTTA RANGEL, KOLODKIN, PARK, BAMELA ENGO,
NELSON, CHANDRASEKHARA RAO, WARIOBA, LAING, MARSIT,
NDIAYE;

AGAINST: Judges CAMINOS, YANKOV, AKL, ANDERSON, VUKAS,

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 TREVES, EIRIKSSON.

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 ANNEX
(Paragraph 175 (f))

Name Crew members/ Amount of

other persons Compensation
in US$

Klyuyev, Sergey Crew member 1,700

Bilonozhko, Mykola Crew member 3,300

Bobrovnik, Oleksandr Crew member 3,300
Gaponenko, Oleksandr Crew member 3,300
Ivanov, Oleksandr Crew member 3,300
Komanych, Yevgeniy Crew member 3,300
Krivenko, Vadim Crew member 3,300
Kutovy, Volodymyr Crew member 3,300
Lashchyonyk, Yevhen Crew member 3,300
Lymar, Volodymyr Crew member 3,300
Maslov, Sergiy Crew member 3,300
Nezdiyminoha, Vyacheslav Crew member 3,300
Popov, Nikolay Crew member 3,300
Shevchenko, Volodymyr Crew member 3,300
Soltys, Vasyl Crew member 3,300
Stanislavsky, Denys Crew member 3,300
Svintsov, Yevgeniy Crew member 3,300
Tatun, Sergiy Crew member 3,300
Vadym, Baranov Crew member 3,300
Volynets, Konstantin Crew member 3,300
Vyshnevsky, Oleksandr Crew member 3,300

Fall, Lat Soukabe Painter 3,300

Niasse, Djibril Painter 1,700
Sene, Abdulaye Painter 3,300

Total 76,000

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 Done in English and French, both texts being equally authoritative, in the Free and
Hanseatic City of Hamburg, this first day of July, one thousand nine hundred and ninety-nine, in
three copies, one of which will be placed in the archives of the Tribunal and the others
transmitted to the Government of Saint Vincent and the Grenadines and the Government of
Guinea, respectively.

(Signed) Thomas A. MENSAH,

President.

(Signed) Gritakumar E. CHITTY,

Registrar.

Judges CAMINOS, YANKOV, AKL, ANDERSON, VUKAS, TREVES and EIRIKSSON,

availing themselves of the right conferred on them by article 125, paragraph 2, of the Rules of the
Tribunal, append their joint declaration to the Judgment of the Tribunal.

(Initialled) H.C.
(Initialled) A.Y.
(Initialled) J.A.
(Initialled) D.H.A.
(Initialled) B.V.
(Initialled) T.T.
(Initialled) G.E.

President MENSAH, availing himself of the right conferred on him by article 30,
paragraph 3, of the Statute of the Tribunal, appends his separate opinion to the Judgment of the
Tribunal.
(Initialled) T.A.M.

Vice-President WOLFRUM, availing himself of the right conferred on him by article 30,
paragraph 3, of the Statute of the Tribunal, appends his separate opinion to the Judgment of the
Tribunal.
(Initialled) R.W.

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 Judge ZHAO, availing himself of the right conferred on him by article 30, paragraph 3, of
the Statute of the Tribunal, appends his separate opinion to the Judgment of the Tribunal.

(Initialled) L.Z.

Judge NELSON, availing himself of the right conferred on him by article 30, paragraph 3,
of the Statute of the Tribunal, appends his separate opinion to the Judgment of the Tribunal.
(Initialled) L.D.M.N.

Judge CHANDRASEKHARA RAO, availing himself of the right conferred on him by

article 30, paragraph 3, of the Statute of the Tribunal, appends his separate opinion to the Judgment
of the Tribunal.
(Initialled) P.C.R.

Judge ANDERSON, availing himself of the right conferred on him by article 30,
paragraph 3, of the Statute of the Tribunal, appends his separate opinion to the Judgment of the
Tribunal.
(Initialled) D.H.A.

Judge VUKAS, availing himself of the right conferred on him by article 30, paragraph 3, of
the Statute of the Tribunal, appends his separate opinion to the Judgment of the Tribunal.

(Initialled) B.V.

Judge LAING, availing himself of the right conferred on him by article 30, paragraph 3, of
the Statute of the Tribunal, appends his separate opinion to the Judgment of the Tribunal.

(Initialled) E.A.L.

Judge WARIOBA, availing himself of the right conferred on him by article 30, paragraph 3,
of the Statute of the Tribunal, appends his dissenting opinion to the Judgment of the Tribunal.
(Initialled) J.S.W.

Judge NDIAYE, availing himself of the right conferred on him by article 30, paragraph 3, of
the Statute of the Tribunal, appends his dissenting opinion to the Judgment of the Tribunal.
(Initialled) T.M.N.

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 JOINT DECLARATION BY JUDGES CAMINOS, YANKOV, AKL, ANDERSON,
VUKAS, TREVES AND EIRIKSSON ON THE QUESTION OF COSTS

We were unable to support the decision in this case on the question of costs for two
reasons.

First, the two States parties to the dispute requested the Tribunal to award costs to the
successful party. They included their joint request in their Agreement of February 1998. They
repeated it individually at the time of making their respective final submissions, in which each
party sought recovery of its costs against the other. The parties are in agreement that the
successful party should be awarded its costs and, at the request of the Tribunal, each has
submitted invoices and accounts which have been duly examined.

In this connection, we recall that, from the outset of the work of the Permanent Court of
International Justice, it was understood that the terms of Article 64 of its Statute (comparable to
article 34 of the Tribunal’s Statute) did not exclude the possibility that a division of the costs
between the parties could be ordered pursuant to an agreement between them. The Sub-
Committee of the Third Committee of the Assembly of the League of Nations, in reporting on its
work in preparation for the adoption by the Assembly of the Statute of the Permanent Court,
stated: “The Sub-Committee unanimously recognises that the terms of [Article 64] do not
prevent division of the costs between the Parties in accordance with an agreement between
them.” (League of Nations, Records of the First Assembly, Meetings of the Committees, I, p. 537,
Geneva, 1920).

In the present case, there is clearly agreement between the parties to the effect that the
party found by the Tribunal to have been the “successful party” should receive its costs.

Secondly, this case has resulted in the award of compensation. The Tribunal has
determined certain precise amounts of compensation, as well as interest, with the stated aim of
wiping out the consequences of acts found to have been contrary to the Convention (paragraph
170 of the Judgment). In our opinion, it would have been consistent with the full achievement of
that aim to have departed from the general rule and to have awarded costs to Saint Vincent and
the Grenadines, as the generally successful party.

We recognize that, as regards the general question of the award of costs, the Tribunal has
not yet elaborated specific rules or procedures, such as have been adopted by other international
courts and tribunals. Nonetheless, on the basis of certain general principles and the information
provided by each party, we would have awarded, in the circumstances of this case, reasonable
costs in respect of the following: professional fees, travel and subsistence of agents, counsel and
advocates; travel and subsistence of witnesses; production of evidence; and other expenses
necessarily incurred for the purposes of this phase of the proceedings. Such an award, by
responding affirmatively to the repeated requests of both parties, would have done no more than
meet their legitimate expectations.

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 Finally, we support the decision of the majority that the general rule on costs is applicable to
the phase of the proceedings concerning provisional measures, in the absence in our opinion of a
successful party in that phase.

(Signed) Hugo Caminos

(Signed) Alexander Yankov
(Signed) Joseph Akl
(Signed) David H. Anderson
(Signed) Budislav Vukas
(Signed) Tullio Treves
(Signed) Gudmundur Eiriksson

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 SEPARATE OPINION OF PRESIDENT MENSAH

1. I have voted in favour of operative paragraph 3 of the Judgment in spite of the serious
doubts I have about the registration status of M/V Saiga at the time of the incident which gave
rise to the dispute. I have had the opportunity to read the Dissenting Opinions of Judges
Warioba and Ndiaye on the issue of the registration and nationality of the Saiga, and I agree with
the main thrust of their Opinions that, on a correct interpretation of the Merchant Shipping Act of
Saint Vincent and the Grenadines, read with the relevant provisions of the Convention, the Saiga
was not a ship entitled to fly the flag of Saint Vincent and the Grenadines on 28 October 1997
because, on that day, its provisional registration had expired and no other registration had been
granted to it under the laws of Saint Vincent and the Grenadines. I have also seen the Separate
Opinion of Vice-President Wolfrum on this point, and I agree fully with his reasoning and
conclusions.

2. The facts concerning the registration of the Saiga in the period between 12 March 1997 and
28 November 1997 are not in dispute. Both parties accept that there was no currently valid
document of registration for the ship from 12 September 1997, when the Provisional Certificate
of Registration was stated to expire, to 28 November 1997, when the Permanent Certificate of
Registration was issued to the ship. (The Provisional Certificate of Registration that was issued
to the Saiga on 14 April 1997 states: “This Certificate expires on 12 September, 1997”). And it
is not disputed that the entry in the Ships Register of Saint Vincent and the Grenadines recorded
that the provisional registration of the Saiga was valid only up to 12 September 1997 (“Valid
thru: 12/09/97”). The disagreement between the parties concerns the conclusion that may be
drawn from these facts. Guinea contends that the only conclusion to be drawn from the absence
of both a certificate of registration in force and a valid entry in the Ships Register is that the ship
was not registered in Saint Vincent and the Grenadines. Consequently, it concludes that the ship
did not have the nationality of Saint Vincent and the Grenadines during the period. Saint
Vincent and the Grenadines, on the other hand, maintains that provisional registration continued
in force during the period, notwithstanding the fact that the Provisional Certificate of
Registration had expired and the entry in the Ships Register stated that registration had ceased to
be valid with effect from 12 September 1997.

3. Saint Vincent and the Grenadines supports its contention with arguments based on its
interpretation of certain provisions of its Merchant Shipping Act of 1982 (hereinafter “the
Merchant Shipping Act”), particularly section 36(2) of the Act. It also calls in aid certain “overt
signs” of nationality on the ship or on board, as well as documents and declarations issued by the
authorities of its Maritime Administration. However, the information and declarations are based
on provisions of the Merchant Shipping Act, so the real basis of the case of Saint Vincent and the
Grenadines is its interpretation of those provisions. The Judgment states, in paragraph 71, that it
considers this “evidence” is sufficient to establish the Vincentian nationality of the Saiga at the
time it was arrested by Guinea. I do not agree with this conclusion.

4. As has been so comprehensively and cogently demonstrated in the Opinions of Vice-

President Wolfrum and Judges Warioba and Ndiaye, nothing in the evidence adduced by Saint
Vincent and the Grenadines can be said to have “established” that the Saiga was registered in
Saint Vincent and the Grenadines on 28 October 1997, either pursuant to the Merchant Shipping

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Act or, more crucially, by reference to article 91 of the Convention, which is the controlling
provision on the question. I will do no more than recapitulate the extensive recitals of fact and
arguments in their opinions.

5. According to the Merchant Shipping Act a ship acquires Vincentian nationality only
through registration in accordance with the procedures specified therein for that purpose.
Section 2 of the Act provides that “’Saint Vincent and the Grenadines ship’ means a ship
registered under this Act and includes any ship that is deemed to be registered under this Act”. It
follows that a ship which is not registered under the Act does not have Vincentian nationality,
whatever the officials of the State may declare. The facts in this case show that the Saiga was not
registered (provisionally or permanently) in the manner required by the Act. Saint Vincent and
the Grenadines acknowledges that the Provisional Certificate of Registration of the Saiga expired
on 12 September 1997. In the letter of 1 March 1999 the Deputy Commissioner for Maritime
Affairs stated that “in this case”, as frequently, the owners of the Saiga had allowed the
Provisional Certificate of the Saiga to “lapse” before applying either for an extension of the
Provisional Certificate or for the issue of a permanent certificate. There was, therefore, a gap in
the registration between the date when the Provisional Certificate of Registration was allowed to
lapse and the date on which the Permanent Certificate of Registration was issued to the ship, i.e.
from 12 September to 28 November 1997. In my view, this gap cannot be cured by the
Merchant Shipping Act, because no provision of the Act deals with such a situation. Nor can the
gap be cured by declarations of the officials of the Maritime Administration, especially when
such declarations are made in the context of litigation proceedings in which they are interested
parties.

6. Saint Vincent and the Grenadines seeks to explain away the gap in the registration by
recourse to section 36(2) of the Merchant Shipping Act. This provision reads: “The provisional
certificate of registration issued under subsection (1) shall have the same effect as the ordinary
certificate of registration until the expiry of one year from the date of its issue.” Saint Vincent
and the Grenadines’ contention is that this provision serves to keep a provisional certificate of
registration in force beyond the period of its expiration specifically indicated at the time of its
issue and expressly stated on its face. In effect, the argument of Saint Vincent and the
Grenadines is that, although the Provisional Certificate of Registration expired (“lapsed”, in its
own words) on 12 September 1997, it, nevertheless, continued to have effect after that date,
simply because section 36(2) of the Act states that a provisional certificate of registration has the
same effect as an ordinary certificate of registration for one year.

7. Saint Vincent and the Grenadines supports its argumentation with the claim that, “when a
vessel is registered under its flag, it remains so registered until it is deleted from the Registry”.
In its submissions before the Tribunal, Saint Vincent and the Grenadines stated: “When a vessel
is registered under the flag of Saint Vincent and the Grenadines it remains so registered until it is
deleted from the registry in accordance with the conditions prescribed in section 1, articles 9 to
42 and 59 to 61, of the Merchant Shipping Act of 1982. At the time of registration a provisional
certificate of registry is issued, followed by a permanent certificate of registry when certain
conditions are satisfied. In the case of the Saiga her location prevented delivery on board of the
Permanent Certificate but this in no way deprived the vessel of its character as Vincentian nor

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had the effect of withdrawing it from the register. Had there been any doubt in this regard,
inspection of the Ships Register would have eliminated it.”

8. As has been shown by Vice-President Wolfrum, this statement has no basis in the Merchant
Shipping Act. But even if this statement is true in respect of a ship that has been permanently
registered under the Act, it is inaccurate in relation to a ship which is provisionally registered
under the Act. Under section 36(2) of the Act, on which Saint Vincent and the Grenadines relies,
a ship that is provisionally registered ceases to be so registered one year after the date of the
issue of the provisional certificate of registration, unless a permanent certificate has been issued
to it prior to or at that time. No specific act or decision is necessary to bring the provisional
registration to an end. Similarly, by virtue of section 37 of the Act, a ship that is provisionally
registered ceases to be so registered after sixty days if its owners fail to fulfil the conditions
specified in that section. Again, no decision or official act is needed to effect the cessation of the
provisional registration. Indeed, in spite of the claim of Saint Vincent and the Grenadines, there
is no provision for the deletion of a provisionally registered ship from the register. And this is
not surprising. Provisional registration means exactly what is says: it is a status of temporary
duration. The ship is registered for the specific period indicated in the document issued to that
effect. Upon the expiry of that period it ceases to be registered unless one of two measures are
taken by the owners. These are either an application for the extension of the provisional
registration (subject to the restriction that the total period of provisional registration must not
exceed one year) or, alternatively, an application for a permanent registration, provided that the
conditions stipulated in the Act for that purpose have been fulfilled. No other possibility is
available under the Act after the period of provisional registration expires. The ship is either
granted an extended provisional registration or a permanent registration. Failing that, it
automatically ceases to be registered. Thus the claim of Saint Vincent and the Grenadines that a
ship which is provisionally registered under its flag remains so registered until it is deleted from
the registry is incorrect.

9. The claim that every provisional certificate, regardless of its stated period of validity,
continues to have effect for one year under all circumstances appears to be contradicted by the
practice adopted by the very Maritime Administration which makes the claim. As stated in the
brochure issued by the Commissioner, the common practice is to issue provisional certificates for
six months with the possibility of renewal. The Deputy Commissioner explained that “[o]ne
purpose of this is to encourage owners to comply with the formalities of permanent registration
sufficiently in advance of the one-year validity period of the provisional registration period under
Section 36 (2) of the Act”. This practice is not incompatible with section 36(2) of the Merchant
Shipping Act. That section sets a maximum limit of one year for provisional registration but
does not establish a minimum period for which provisional registration may be granted. As I see
it, the practice indicated in the brochure implements section 36(2) in a manner which is entirely
within its meaning and intent. That being the case, one may ask what the purpose of renewing a
six-month provisional certificate may be, if the certificate in fact has mandatory effect for a full
year, regardless of its stated expiry date? And, if the Administration really interprets section
36(2) to mean that provisional registration remains in effect for one full year in every case, what
significance is to be attached to the entry in the Ships Register that the provisional registration of
the Saiga was “[v]alid thru: 12/09/1997”?

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10. It may also be noted in this regard that the submission of Saint Vincent and the Grenadines,
quoted in paragraph 7 above, does not tally with the facts as they appear in the evidence before
the Tribunal. The claim that the Saiga’s “location prevented delivery on board of the Permanent
Certificate” is not supported by the evidence, which shows that there was no permanent or other
certificate at any time before 28 November 1997. Hence the absence of a permanent certificate
on board the ship had nothing to do with the location of the ship. The simple reason is that no
such certificate existed at the time. Then again, the suggestion that an inspection of the Ships
Register would have confirmed the continued registration of the ship is not borne out by the
facts. Prior to 28 November 1997, the only entry in the Ships Register of Saint Vincent and the
Grenadines was the one that stated that registration of the ship had ceased to have validity as of
12 September 1997 (was “[v]alid thru: 12/09/1997”). Hence an examination of the Register soon
after the arrest, or at any time prior to 28 November 1997, would only have confirmed that, while
the ship had previously been registered in Saint Vincent and the Grenadines, it was no longer so
registered.

11. In my view, therefore, there is no provision in the Act to justify the proposition of Saint
Vincent and the Grenadines that section 36(2) of the Act can be interpreted to extend the period
of validity of each and every provisional certificate of registration beyond the date on which the
certificate is expressly stated to expire.

12. I wish to emphasize that, in suggesting that the Tribunal should not accept the claim of
Saint Vincent and the Grenadines that section 36(2) of its Act restores the lapse of registration of
the Saiga in this case, I am not proposing that the Tribunal should attempt to interpret the
Merchant Shipping Act, or even speculate on how a court in Saint Vincent and the Grenadines
would react to that claim. I only suggest that the Tribunal apply a principle which I consider to
be generally applicable in international adjudication and appropriate in this case. That principle
is that nothing prevents an international court or tribunal from examining whether or not, in
interpreting or applying its laws, a State is acting in conformity with its obligations under
international law - in this case the Convention which is binding on both parties to the dispute. In
the present dispute, Saint Vincent and the Grenadines claims that a ship for which no valid
certificate of registration exists and in respect of which there is no entry in its Ships Register, is,
nevertheless, to be considered as having Vincentian nationality. Saint Vincent and the
Grenadines argues that, under its laws, a ship whose certificate of registration has expired
nevertheless continues to have its nationality. Guinea challenges this claim. It bases its
challenge on article 91 of the Convention. The task of the Tribunal is to determine whether the
interpretation of the Act, as given by Saint Vincent and the Grenadines, is in conformity with
article 91 of the Convention. In another context in the present case, the Tribunal has, in my view
legitimately, relied on the same principle mentioned above to declare that Guinea's interpretation
and application of its laws in the customs zone were incompatible with the Convention
(Judgment, paragraphs 121 and 136). I believe that, in this context also, the Tribunal has the
competence to examine the interpretation of the Merchant Shipping Act as put forward by Saint
Vincent and the Grenadines in order to determine whether the law, as thus interpreted, is
consistent with its obligations under the Convention. This appears to me to be even more
appropriate in this case since, as Judge Rao pertinently points out in his Opinion (paragraph 7),
the interpretation of the Act presented by Saint Vincent and the Grenadines is not based on a
pronouncement of a court of Saint Vincent and the Grenadines but is merely a submission by

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counsel representing Saint Vincent and the Grenadines in litigation proceedings. I also recall
that Guinea made a similar claim regarding the interpretation of a provision of its national
legislation on the “customs radius”. In response the Tribunal noted, again correctly in my
opinion, that Guinea had produced no evidence to support its interpretation beyond the assertion
that the interpretation reflects the consistent position of its administration and courts (Judgment,
paragraph 122). It is also not without significance that the Tribunal has itself reasserted the
principle that domestic law is a fact to be proved by evidence before it (Judgment, paragraph
120). On that basis the Tribunal does no more than its judicial duty if it requests a party before it
to provide appropriate evidence and arguments to support an assertion that a given rule is part of
its national law.

13. I must also stress that, if the Tribunal had accepted Guinea's challenge to the assertions of
Saint Vincent and the Grenadines that the Saiga was registered with it, it would not necessarily
have been questioning the exclusive jurisdiction which article 91 of the Convention accords to
Saint Vincent and the Grenadines to determine the conditions under which it registers ships in its
territory, or grants to ships the right to fly its flag. Pursuant to article 91 of the Convention it is
for Saint Vincent and the Grenadines to determine the conditions for the registration of ships in
its territory and for the grant of its nationality to ships. Saint Vincent and the Grenadines has
duly exercised this power in its Merchant Shipping Act. Under the Act, Vincentian nationality is
acquired by registration, and registration is effected by the issue of a certificate of registration.
What is being questioned by Guinea in this case is the claim, which necessarily underlies the
contentions of Saint Vincent and the Grenadines, that a declaration by an official of its Maritime
Administration is sufficient to confer Vincentian nationality to a ship, even where the evidence
indicates that the conditions established in the law for registration and the grant of the right to fly
the Vincentian flag have not been satisfied. For my part I see merit in Guinea’s objection.
Article 91 of the Convention accords to each State the exclusive right to set the conditions for the
acquisition of its nationality by ships, but that provision does not also support the proposition
that a ship can acquire nationality merely because an official of the State declares that it has such
nationality.

14. The same is true of overt signs of nationality, such as inscriptions and documents, on which
Saint Vincent and the Grenadines has relied, and which have apparently been accepted by the
Tribunal, as “evidence” to prove the continuance of registration and national status (Judgment,
paragraph 67). These are signs that may, and in some cases must, be put on the ship or on board.
They are consequences of registration but they do not constitute independent and sufficient
evidence of registration when there is no other evidence of such registration.

15. It is in the light of the above considerations that I am not able to support the conclusion in
the Judgment that Saint Vincent and the Grenadines has “established” that the Saiga was
registered in, and had the nationality of, Saint Vincent and the Grenadines at the time it was
arrested. By the same token, I am unable to support the other leg of the finding that the evidence
and argumentation of Guinea have not been sufficient to warrant a finding that the ship was not
registered at the time. In my view all that was required of Guinea in this case was evidence to
show that the Provisional Certificate of Registration of the Saiga had expired on 12 September
1997; that the provisional registration of the Saiga, as recorded in the Ships Registry, was no
longer valid after 12 September 1997; and that there was no certificate or record of registration

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of any kind on the basis of which the Saiga could claim the right to fly the flag of Saint Vincent
and the Grenadines on 28 October 1997 when the Saiga was arrested. I am satisfied that Guinea
has done this convincingly, by means of evidence which has not been contested by Saint Vincent
and the Grenadines.

16. But, although I do not agree with the Judgment’s finding that Saint Vincent and the
Grenadines has established that the Saiga was registered under its flag on the day of the incident
giving rise to the dispute, I am able, nevertheless, to support the decision to reject Guinea's
contention that Saint Vincent does not have legal standing to bring the dispute to the Tribunal. I
have joined in the decision to deal with the merits of the case because I agree, as stated in
paragraph 73 (d) of the Judgment, that it would not be consistent with justice if the Tribunal were
to decline to deal with the merits of the dispute, having regard to the particular circumstances of
the case.

17. Although I am in no doubt that there was a gap in the registration of the ship, I am fully
satisfied that this was due to lapses in the law and practice in the Maritime Administration of
Saint Vincent and the Grenadines, which in turn encouraged a certain lack of diligence on the
part of the owners and operators of the ship. The evidence in this case convinces me that both
the officials of Saint Vincent and the Grenadines as well as the owners of the Saiga genuinely,
though misguidedly, believed that the provisional registration of the ship continued in force after
12 September 1997. This appears to account for the fact that the relevant authorities of Saint
Vincent and the Grenadines, as well as the owners and charterers of the ship, continued to
operate on the basis that the Saiga was entitled to fly the flag of Saint Vincent and the
Grenadines during the entire period between 12 September and 28 November 1997 when the
Permanent Certificate of Registration was issued to the Saiga. My conclusion, therefore, is that
the defect in the registration of the Saiga, though real, was more technical than substantive.

18. I would have felt more comfortable in coming to this conclusion if Saint Vincent and the
Grenadines had admitted that there was a gap in the registration and tried to minimize its
significance. Instead it has attempted, in my view unsuccessfully, to argue away the gap by
relying on provisions of its Merchant Shipping Act. In the process the Tribunal has on occasions
not been treated with the full candour and disclosure of facts to which it is entitled. For example,
during the oral proceedings on 28 November 1997 counsel for Saint Vincent and the Grenadines,
in response to a question from the Agent of Guinea about the ownership of the Saiga, stated:
“We have been able to obtain this morning a provisional certificate of registration from Saint
Vincent and the Grenadines, which unfortunately, although dated 14 April 1997, is dated to
expire on 12 September 1997. Efforts are being made to obtain the no longer provisional but full
certificate of registration on behalf of the owners. We hope that we will be able to get this to the
Tribunal at the latest during the adjournment” (ITLOS/PV.97/2, p. 5, 15-20). However, the
certificate that was produced was found to be one that did not apply to the period of the dispute.
Indeed, the certificate produced was actually issued on 28 November 1997, the very day on
which counsel undertook to make it available, although the impression was given at the time that
the certificate already existed. Furthermore, no explanation was given as to the documentary
situation prior to the issue of the certificate or why no document that was applicable to the period
prior to 28 November 1997 was produced. It is pertinent to note that this period for which no
document was forthcoming covered not only the time of the arrest of the Saiga, but also the

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times when Saint Vincent and the Grenadines invoked the jurisdiction of the Tribunal for the
prompt release of the ship and the prescription of provisional measures. It was mainly due to this
absence of accurate information from Saint Vincent and the Grenadines that the Tribunal, in its
Order of 11 March 1998, accepted without qualification that the Saiga was a ship flying the flag
of Saint Vincent and the Grenadines. In my view, the Tribunal would have been better served if
Saint Vincent and the Grenadines had been more forthcoming with information and explanations
on what was an important aspect of the case before it.

19. Be that as it may, the conclusion I draw from the facts before the Tribunal is that the defect
in the registration of the Saiga was due to lapses in law and administrative practices rather than a
conscious decision to abrogate or even interrupt registration. That being the case, I have
supported without difficulty the decision to proceed to the merits of the case. This decision, in
effect, disregards what is no more than a technical defect in order to do greater justice.

20. In this connection I note that a ruling that Saint Vincent and the Grenadines does not have
standing to bring the dispute to the Tribunal would effectively deprive the persons involved or
interested in the operation of the Saiga of redress in respect of injury, damage and other losses
suffered by them as a result of what the Judgment has found to be serious violations of the
Convention and other rules of international law committed by Guinea in this case. The
violations do not only affect commercial interests but also relate to fundamental human rights
and the dignity of the person. I am particularly conscious that some of the persons who have
suffered damage or loss as a result of the measures taken by Guinea had no responsibility for the
legal and administrative errors and omissions regarding the registration of the ship that have
given rise to doubts about its registration and nationality. Thus, refusal to deal with the merits of
the case would have had far-reaching consequences for these persons. In my view a court of law
and justice should only take a decision which denies justice in such a way if no other course is
legally open to it on the evidence. I do not think that this is the case in the circumstances of the
present dispute. In his Dissenting Opinion in the Nottebohm case, Judge ad hoc Guggenheim
stated: “The finding that the Application is not admissible on the grounds of nationality prevents
the Court from considering the merits of the case and thus from deciding whether the respondent
State is or is not guilty of an unlawful act as regards Liechtenstein and its national, who has no
other legal means of protection at his disposal. Moreover, a preliminary objection must be
strictly interpreted. It must not prevent justice from being done” (emphasis supplied)
(Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, p. 64). While Guinea’s objection in
this case is not strictly speaking a “preliminary objection”, the effect of upholding Guinea’s
objection to admissibility in this case would be the same as the result that Judge Guggenheim did
not find acceptable. My position in this case is based on the principle so clearly formulated by
the eminent Judge.

21. I am further fortified in my view by the knowledge that, in the present case, a ruling to
proceed on the merits of the case cannot prejudice any rights of Guinea. As the Judgment notes
Guinea has, for much of the period of the dispute, accepted Saint Vincent and the Grenadines as
the flag State of the Saiga. I must add that I do not share the implication in the Judgment that
Guinea's challenge of this fact in the present proceedings is in some sense improper or evidence
of bad faith. Indeed, in my opinion, Guinea has a better right to claim that it has been the victim
of bad faith on the part of Saint Vincent and the Grenadines. But that is neither here nor there

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for present purposes. The fact is that Guinea has accepted and acted upon the representation by
Saint Vincent and the Grenadines that it was the flag State of the Saiga at the time of the
incident. In any case, it is clear from the evidence that the nationality of the Saiga did not have
any significance at all in the decisions of the authorities of Guinea to take the measures they took
against the ship. Nothing in the evidence suggests that the measures taken by Guinea would
have been different if the Saiga’s nationality had been other than that of Saint Vincent and the
Grenadines. As far as the authorities of Guinea were concerned, a foreign ship was undertaking
activities in Guinea’s customs radius which, in their view, violated the laws of Guinea. They set
out to arrest that ship, whatever its nationality might be, and to punish it in accordance with
Guinea’s laws as they understood them to be. Thus, the legality of the measures did not depend
on the nationality of the ship. Guinea either had the right under the Convention to take those
measures against a foreign ship in the circumstances or it did not have that right. The same
objections would have applied to those measures regardless of the nationality of the ship against
which they were taken; and Guinea’s defence before the Tribunal would have been the same if
the action had been brought by any other flag State. Consequently, Guinea does not suffer any
prejudice from the fact that the ship happens to be of Vincentian nationality. For these reasons,
also, I have no hesitation in agreeing to the decision to proceed to the merits of the case, and thus
consider the allegations that Guinea acted in violation of its obligations under the Convention,
both in the measures it took against the Saiga and in the manner in which the measures were
taken.

22. In coming to this conclusion, I find it necessary to express my concerns regarding certain
unusual features of the legislation of Saint Vincent and the Grenadines and the administrative
practices of its Maritime Authorities concerning the issue of documents to ships. These aspects
of the law and practice of Saint Vincent and the Grenadines are at the root of the differences
between the parties, and even Members of the Tribunal, concerning the registration of the Saiga
at the time of the incident. One such feature of the legislation is the fact that the Merchant
Shipping Act permits provisional registration to last for as long as twelve months. This long
period of provisional registration provides scope for abuse by unscrupulous shipowners who may
wish to operate sub-standard ships, for it makes possible for them to switch such ships between
flags on consecutive “provisional registrations” for one year at a time. This potential for abuse
has already been noted in the discussions in the International Maritime Organization (IMO) on
the subject of “Implications Arising when a Vessel loses the Right to fly the Flag of a State”. It
is also a cause for concern that the Maritime Administration appears to allow and condone the
practice by which ships operate under provisional registration without valid certificates of any
kind. In this regard, I refer to the statement by the Deputy Commissioner for Maritime Affairs
that “it is very common for Owners to allow the … Provisional Certificate to lapse for a short
period before obtaining either a further Provisional Certificate or a Permanent Certificate”. The
lack of diligence on the part of shipowners in renewing or replacing certificates at the
appropriate time, and the toleration of such lapses by Saint Vincent and the Grenadines, can have
undesirable implications for the effective implementation of the provisions of the Convention on
nationality of ships and the duties of flag States. The practice could also encourage abuses and
create difficulties in international maritime transport. Specifically, it could encourage or
condone neglect on the part of owners and managers of ships and thus lead to situations where,
as in the present case, a ship is able to operate for more than six weeks without having on board a
currently valid document testifying that it was in fact registered with the State whose flag it was

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flying. It is hardly necessary to stress that a certificate of registration is the most important
evidence of the nationality of a ship for third States and other parties who may have an interest in
the identity of the flag State or in the discharge of flag State responsibilities under the
Convention and other international agreements dealing with safety at sea and the prevention and
control of pollution of the marine environment from ships. It is also important to note that the
issue of such certificates is required by article 91 of the Convention. It is, therefore, imperative
that every ship operating internationally should have a valid certificate of registration at all
times.

23. It is to be hoped that the lessons learnt from these proceedings will provide an incentive to
the Maritime Administration of Saint Vincent and the Grenadines, and other shipping registers,
to improve their legislation and also ensure adequate vigilance on the part of the authorities
entrusted with administering registers of ships.

(Signed) Thomas A. Mensah

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 SEPARATE OPINION OF VICE-PRESIDENT WOLFRUM

1. I have voted for operative paragraphs 3 and 5 of the Judgment for reasons which, in some
places, differ substantially from those the Judgment is primarily based upon. The separate
opinion sets out the grounds for my disagreement and provides for alternative reasons for the
holdings of the Judgment; in particular it will concentrate on the following issues: the mode
concerning the appreciation of evidence as developed and applied in the Judgment; the reasoning
concerning registration and nationality of the M/V Saiga; interpretation and application of the
principle of the exhaustion of local remedies; relationship between the Convention on the Law of
the Sea and national law as well as the competences of the Tribunal to establish violations of
national law.

Appreciation of evidence

2. The Judgment refers to principles on the appreciation of evidence to be applied in this case in
several places (paragraphs 66 to 70, 72 to 74, 122, 135, 148, and 175). These paragraphs do not
really reveal which mode concerning the appreciation of evidence the Tribunal considers to be
appropriate although it is evident that the appreciation of evidence occupies a decisive role in the
reasoning of the Judgment. As a matter of transparency of the Judgment, the system on the
appreciation of evidence should be clearly identified and fully reasoned. One may even consider
this to be a mandatory conclusion to be drawn from the principle of fair trial, an established
principle of international law.

3. Before dealing specifically with the mode of appreciation of evidence used in the Judgment
some brief general remarks are called for.

4. International jurisprudence does not provide for extended guidance in respect of the
appreciation of evidence. Contrary to municipal law, international law, in general, and the rules of
international courts and tribunals, in particular, have only developed regulations on procedural
aspects concerning the submission of evidence by the parties but not on the appreciation of evidence
in general. This is also true for the Rules of the Tribunal which in several provisions refer to the
submission of evidence by the parties and the authority of the Tribunal to call upon the parties to
produce such evidence the Tribunal considers necessary.

5. Nevertheless, the Tribunal is not totally free in deciding on the mode of appreciation of
evidence. It is guided in this respect by the principles of impartiality and fair trial and its duty to
arrive at a decision.

6. Rules concerning the appreciation of evidence in all legal systems generally identify two
issues to be considered, namely which of the parties has the burden of proof and what is the
standard of appreciation to be used in assessing the evidence produced. Both issues are linked. The
notion of the burden of proof embraces two aspects: a procedural one, namely who has the duty to
present pleadings and evidence, as well as a substantive one, namely which party bears the negative
consequences if the alleged facts have not been proven satisfactorily. Whether a fact has been
proven satisfactorily is where the standard of proof becomes relevant.

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7. It is the prevailing principle governing the appreciation of evidence by adjudicating bodies in
all main legal systems that the burden of proof lies on the party who asserts them (actiori incumbit
probatio). It has been argued occasionally that international tribunals are not tied by such firm rules
as developed in all national legal systems since they were not appropriate to litigation between
Governments. I have doubts whether this approach is still fully adequate. The principle actiori
incumbit probatio is recognized in all legal systems. While the particularities of each legal system
may result in modifications concerning the implementation of this principle its essence is
uncontested, namely that the party which asserts a fact, whether the claimant or the respondent,
bears the negative consequences if the respective facts are not proven. This rule was reaffirmed by
the International Court of Justice in several cases (Nicaragua case, I.C.J. Reports 1984, p. 437,
paragraph 101; Frontier Dispute case, I.C.J. Reports 1986, pp. 587-588; Temple of Preah Vihear
case, I.C.J. Reports 1962, pp. 15-16); it has also been upheld by the Permanent Court of
International Justice, conciliation commissions, mixed claims commissions and, in particular, The
Iran-United States Claims Tribunal.

8. The Judgment does not refer to the burden of proof of either party explicitly although the
principle has been invoked in several places. It proceeds implicitly from the premise that it is for
Saint Vincent and the Grenadines to establish that the Saiga had, at the time of its arrest, the
nationality of Saint Vincent and the Grenadines (paragraph 72). To this I agree since it is Saint
Vincent and the Grenadines which is the claimant and the nationality of the Saiga is a constituent
element for the claim advanced by Saint Vincent and the Grenadines. However, the Judgment does
not implement this approach consistently. Paragraph 72, in fact, by referring to “the initial burden”
of proof makes an unjustified and unjustifiable attempt to ameliorate the consequences for Saint
Vincent and the Grenadines of a full implementation of the principle of burden of proof. For similar
reasons I disagree with the way of reasoning in paragraph 148 of the Judgment. The Judgment
should have elucidated why the burden of proof that visual or auditory signals to stop were given
remained with Guinea.

9. I will now turn to the second element of the appreciation of evidence namely the standard of
proof.

10. International tribunals enjoy some discretion concerning the standard of proof they apply,
namely whether they consider a fact to be proven. Nevertheless, in spite of that discretion there
must be a criterion against which the value of each piece of evidence as well as the overall value of
evidence in a given case is to be weighed and determined. It is a matter of justice that this criterion
or standard is spelled out clearly, applied equally and that deviations therefrom are justified.

11. The Judgment does not establish, however, the general standards of proof it applies. In this
respect reference should have been made to article 28 of the Statute of the Tribunal which provides,
inter alia, that in cases where one of the parties does not appear before the Tribunal, the Tribunal
“must satisfy itself not only that it has jurisdiction over the dispute, but also that the claim is well
founded in fact and law.” This provision of the Statute, although applicable to cases where one of
the parties is absent, implies that this is the standard of proof to be applied by the Tribunal in
general.

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12. Traditionally, in international adjudication, apart from prima facie evidence which is reserved
for preliminary proceedings, two standards of proof are applied, proof beyond reasonable doubt,
which requires a high degree of cogency, and preponderance of evidence. The latter means that the
appreciation of evidence points into a particular direction although there remains reasonable or even
more than reasonable doubt. International courts or tribunals have not confined themselves strictly
to these standards but have combined or modified them where justifiable under the circumstances of
the respective case. “[W]ell founded in fact and law” as referred to in article 28 of the Statute is not
a standard of proof in the sense of "preponderance of evidence", it is rather comparable to the
standard of proof in the sense of "proof beyond reasonable doubt" as applied in many national legal
systems (see Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before
International Tribunals, 1996, at p. 324).

13. The Judgment uses different formulas to describe the standard of proof it applies. For example
in paragraphs 72 and 73(a) it is stated that it “… has not been established that the Vincentian
registration or nationality of the Saiga was extinguished …”. In paragraph 148 it is said that “... the
evidence adduced by the Respondent does not support its claim that the necessary visual or auditory
signals to stop were given ...”. The two standards of proof applied seem to differ.

14. More importantly, however, the Judgment does not give any indication which degree of
cogency it felt was necessary to accept that the Saiga was a ship of Vincentian nationality;
obviously it was a low one. The Judgment does not consider it necessary to be satisfied of the
Vincentian nationality of the Saiga but rather accepts the lack of proof for the contrary to be
sufficient. This is irreconcilable with the standard of proof to be applied according to the Statute.
There is no sustainable justification for departing from the standard of proof in respect of the
registration of the Saiga, namely that the Tribunal must be positively satisfied that the claim is
well founded in fact and law. Since the nationality of the Saiga is a constituent element for the
claims of Saint Vincent and the Grenadines as qualified by the Judgment, this standard of proof
is not met by the statement that Guinea was not able to prove the contrary, which it actually did.
When dealing with the nationality of the Saiga I will establish that on the basis of the evidence
before the Tribunal one cannot come but to the conclusion that the Saiga was not registered in
the Register of Ships of Saint Vincent and the Grenadines at the time of its arrest and thus did
not have the nationality of Saint Vincent and the Grenadines.

Registration

15. I disagree with the statements made in paragraphs 72 and 73(a) and (b), namely that “… it has
not been established that the Vincentian registration or nationality of the Saiga was extinguished
…” and that “… the consistent conduct of Saint Vincent and the Grenadines provides sufficient
support for the conclusion that the Saiga retained the registration and nationality of Saint Vincent
and the Grenadines at all times material to the dispute”. I support, however, the statements made in
paragraph 73(c) and (d) and it was only for that reason that I was able to vote for operative
paragraph 3.

16. My disagreement with the statements in paragraphs 72 and 73(a) and (b) is based on two
grounds. The statements and the respective reasoning do not adequately reflect the role of flag
States concerning registration of ships and the significance the Convention on the Law of the Sea

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attaches to proper documentation of registration. Additionally, these paragraphs are based upon an
assessment of facts which I do not share. The evidence before the Tribunal clearly leads to the
conclusion that the Saiga was not registered with Saint Vincent and the Grenadines at the time of its
arrest.

17. Registration of ships has to be seen in close connection with jurisdictional powers flag States
have over ships flying their flag and their obligation concerning the implementation of rules of
international law in respect to these ships. It is one of the established principles of the international
law of the sea that, except under particular circumstances, on the high seas ships are under the
jurisdiction and control only of their flag States, e.g. States whose flag they are entitled to fly. But
the high seas are subject to international law which governs their utilization. This subjection of the
high seas to the rule of international law is organized and implemented by means of a permanent
legal relation between ships flying a particular flag and the State whose flag they fly. This link
enables and, in fact, obliges States to implement and enforce international as well as their national
law governing the utilization of the high seas. The Convention upholds this principle. It further
establishes a legal regime balancing the jurisdictional powers of the flag State and the powers and
competences of coastal States or port States concerning foreign ships whenever they enter maritime
areas under the jurisdiction of the latter or enter respective ports. Since the juridical order of the
maritime spaces is based upon the institution of the nationality of ships, it is necessary that this
nationality be easily identifiable, that, in case of disputing claims or situations requiring the
identification of the ship, its nationality may be established on the basis of verifiable objective data.
These essential principles are not reflected adequately in the Judgment when it considers some signs
of Vincentian nationality, e.g. some documents, including the ship’s seal (see paragraph 67),
produced by the charterer or owner, on board of the ship and, in particular, the subsequent conduct
of Saint Vincent and the Grenadines (see paragraph 68) as sufficient to prove it to have had the
nationality of Saint Vincent and the Grenadines at the time of the arrest.

18. Traditionally the nationality of ships has been established and implemented by linking
national rules on the nationality of ships with international ones and in particular by obliging States
to mutually respect the national rules on the nationality of ships. It is the traditional rule of
international law, frequently confirmed in international and national adjudication, that the national
law of each particular country determines which ship should be eligible for receiving the nationality
of the particular State. It has been equally recognized that each State may decide upon the criteria
of eligibility which must be recognized by other States. Article 91, paragraph 1, first sentence, of
the Convention has codified this rule of international customary law.

19. This rule constitutes as much a right as an obligation of States. The provision embraces the
prescriptive jurisdiction of every State to establish the respective conditions ships have to meet for
being granted the right to fly the flag of that particular State. The wording of the provision further
clearly indicates that States are under an obligation to enact respective national regulations.

20. Article 91, paragraph 1, of the Convention refers to nationality as well as registration without
clarifying the relationship between the two concepts. This again is an area where States have
considerable discretion. Different systems are applied in municipal law; however, it is common to
all of them that the attribution of nationality for merchant ships requires a constitutive act from the
side of the responsible authorities of the given State. It is the prevailing practice that - except for

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warships and sometimes smaller vessels - such constitutive act rests in the registration e.g. that
nationality is granted through registration.

21. The obligation to enter ships into a register of ships has developed in national law; most States
in that respect followed the example of the Navigation Act of the United Kingdom of 1651 as
amended in 1660. This equally holds true for Saint Vincent and the Grenadines. According to
section 2(c) of the Merchant Shipping Act of Saint Vincent and the Grenadines a “´Saint Vincent
and the Grenadines ship’ means a ship registered under this Act and includes any ship that is
deemed to be registered under this Act,” the latter part of the provision referring to ships registered
immediately before the 22 October 1985 under the Merchant Shipping Act of 1894 of the United
Kingdom. Although the Judgment acknowledges that under the law of Saint Vincent and the
Grenadines a ship acquires nationality through registration it does not clearly distinguish between
the two; it indiscriminately refers to one or the other or both (see paragraphs 67 and 68, paragraph
69 and operative paragraph 3 which only refers to registration).

22. To attribute effectively the right to fly its flag to a ship and to be certain that this will be
respected a State must take further steps with the view to make other States cognizant of this fact.
The mode most traditionally upheld to prove the registration and/or nationality of a particular ship is
in making such formal attribution through appropriate documentation. This has been confirmed in
hundreds of treaties of friendship, commerce, and navigation. Although different clauses are used
they all confirm that the nationality of vessels shall be reciprocally recognized on the basis of
documents and certificates on board the vessel issued by the proper authorities of either of the
contracting Parties.

23. The Convention follows this approach in its article 91, paragraph 2. The wording of this
provision indicates that certificates of registration or equivalent documents issued by the respective
national authorities constitute the proof for a particular ship to have the right to fly the flag of that
State. The authorities of other States or international authorities, as the case may be, are under an
obligation to respect these documents as being accurate and valid, in particular, they must not -
except under special circumstances - challenge the validity or accuracy of such documents on the
ground that they do not correspond to the national law of the State having issued the documents.
Only such understanding of the objective of the documents referred to in article 91, paragraph 2, of
the Convention corresponds to the content of the general rule enshrined in article 91, paragraph 1,
first sentence, of the Convention. To consider documents as referred to in article 91, paragraph 2, of
the Convention as being the authoritative statement of the responsible State on the status of a given
ship thus is the necessary mechanism to protect the right of every State to establish its own regime
on registration and nationality of ships and to apply it according to its national law.

24. The Tribunal has received as documentary evidence concerning the nationality of the Saiga
the Certificate of its provisional registration issued 14 April 1997, the entries in the Register of
Ships (p.7306/1G, printed out 15 April 1997), the Certificate of the permanent registration of the
Saiga of 28 November 1997, the respective entry in the Register of Ships and statements of the
Commissioner as well as the Deputy Commissioner of Maritime Affairs concerning registration in
general and of the Saiga in particular. Additionally thereto the registration of the Saiga at the time
of its arrest was intensively addressed in the hearings by both parties.

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25. When establishing whether the Saiga was registered under the flag of Saint Vincent and the
Grenadines the Tribunal does not utilize these documents, in particular it disregards the content of
the Provisional Certificate of Registration and of the Register of Ships. Instead, as already
indicated, the Judgment relies as evidence on “several indications of Vincentian nationality on the
ship or carried on board” (paragraph 67), the conduct of Saint Vincent and the Grenadines after the
arrest of the Saiga (paragraph 68) and on the failure of Guinea to challenge the registration or
nationality of the Saiga (paragraphs 69 and 72(a)). The disregard of the wording of the Provisional
Certificate of the Saiga and of the entry in the Register of Ships, as printed out 15 April 1997, is at
the root of my disagreement with the reasoning of the Judgment on the issue of
registration/nationality of the Saiga.

26. The Judgment should have proceeded from the documents Saint Vincent and the Grenadines
had to issue, according to article 91, paragraph 2, of the Convention, to the Saiga, namely the
Provisional Certificate of Registration relevant at the time of the arrest of the ship. This Certificate
of Registration was marked to be a provisional one and clearly stated that it expired on 12
September 1997. An examination of the Register of Ships (p. 7306/1G, printed out on 15 April
1997, submitted by Saint Vincent and the Grenadines) confirms that the registration of the Saiga (ex
Sunflower) was entered on 12 March 1997 and was valid until 12 September 1997. Apart from
confirming that the registration of the Saiga ceased to be valid on 12 September 1997, its wording
further establishes not that the certificate was provisional but that the registration was a provisional
one and thus was valid only for a period of six months, namely from 12 March to 12 September
1997. Since the permanent registration of the Saiga was entered in the Register of Ships of Saint
Vincent and the Grenadines only on 28 November 1997 the Judgment should have come to the
conclusion that the Saiga was, according to the documents referred to in article 91, paragraph 2, of
the Convention, not registered at the time of its arrest. The further and only possible conclusion to
be drawn is that, according to the Merchant Shipping Act of Saint Vincent and the Grenadines, the
Saiga at the time of its arrest did not have the nationality of Saint Vincent and the Grenadines.

27. The Judgment gives no reason why these documents do not overrule the evidence the
Judgment refers to in paragraph 67. Account should have been taken in this context that it was
Saint Vincent and the Grenadines which had issued documents according to which the Saiga was
not registered at the time of its arrest and that the documents the Judgment seems to rely upon do
not have the same status. The Judgment further does not explain why it considers acceptable the
arguments advanced by Saint Vincent and the Grenadines based upon an interpretation of its
Merchant Shipping Act and its administrative practice (paragraph 67). These arguments are
untenable and the Tribunal should have rejected them. The Tribunal has the power to do so. As
rightly stated in paragraph 66 of the Judgment the nationality of a ship is a fact to be determined,
like other facts in dispute before the Tribunal, on the basis of evidence adduced by the parties. To
do so the Tribunal may interpret the national law invoked as stated in respect of the national law of
Guinea (see paragraphs 120 and 121). In international litigation a State does not have the exclusive
power to interpret its national law to the detriment of the other party.

28. The claim advanced by Saint Vincent and the Grenadines that the Saiga had remained
registered in spite of the wording of the Provisional Certificate and the entry in the Register of Ships
cannot be based upon section 36(2) of the Merchant Shipping Act. According to this provision a
provisional certificate shall have the same effect as the ordinary certificate of registration until the

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expiry of one year from the date of its issue. This provision establishes that a provisional certificate
of registry has the same effect as a permanent one. It does, however, not say that a provisional
certificate of registry has to be valid for 12 months; it further does not say that a provisional
certificate whose validity has expired has the same effect as a permanent certificate. Nothing in the
Merchant Shipping Act of Saint Vincent and the Grenadines precludes the authorities to issue a
provisional certificate being valid only for a shorter period, namely six months. This is confirmed
by the brochure on Saint Vincent and the Grenadines Maritime Administration as well as by a letter
of the Deputy Commissioner for Maritime Affairs of 1 March 1999 explaining that it was the
practice to issue a provisional certificate of registration for a six-month period only. I agree with the
assessments of the Merchant Shipping Act of Saint Vincent and the Grenadines by President
Mensah and Judge Rao in their individual Separate Opinions and of Judge Warioba in his
Dissenting Opinion.

29. Equally section 37 of the Merchant Shipping Act does not sustain the claim that the Saiga
remained validly registered even after the expiry date of the provisional registration. It was argued
that only on the basis of this provision a ship could be deleted from the Register of Ships and since
there had been no suggestion to do so the Saiga had remained on the Register of Ships. Section 37
proves the contrary of what Saint Vincent and the Grenadines means to prove by invoking it.
Section 37 does not provide that a ship has to be deleted from the Register of Ships if the validity of
its registration lapses. Therefore it is impossible to argue that a ship not deleted from the Register
remains registered until deleted. Accepting this argument would mean that even ships whose
provisional registration had come to an end after 12 months would remain registered. Actually the
Merchant Shipping Act does not provide for the removal of ships from the Register of Ships at all
although it foresees several reasons why a certificate may become invalid.

30. The other documents submitted by Saint Vincent and the Grenadines through which it
intended to establish that the Saiga was registered at the time of its arrest confirm that the Saiga’s
provisional registration was valid for six months only and was not renewed. This is in particular
true for the letter of the Deputy Commissioner for Maritime Affairs 1 March 1999. It stated,
amongst others, "... that it is Registry practice for Provisional Certificates of Registry to be issued
for six-month periods as was done with the ‘SAIGA’. One purpose of this is to encourage owners
to comply with the formalities of permanent registration sufficiently in advance of the one-year
validity period of the provisional registration period under Section 36 (2) of the Act. Moreover, in
my experience it is very common for Owners to allow the validity period of the initial Provisional
Certificate to lapse for a short period before obtaining either a further Provisional Certificate or a
Permanent Certificate (as was the case here)". Nevertheless, she considered the Saiga to have
remained validly registered.

31. The Judgment further states that the consistent conduct of Saint Vincent and the Grenadines
following the arrest of the Saiga supports the contention that the nationality of Saint Vincent and the
Grenadines was maintained by the Saiga (paragraph 68). I cannot agree with the underlying
rationale of this reasoning.

32. It is undisputed that Saint Vincent and the Grenadines acted as the flag State of the ship after
its arrest and, in particular, in the proceedings before the Tribunal. The question is whether this is
relevant, that is to say whether a State may establish the nationality of its claim by initiating and

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participating in respective international proceedings or may gain locus standi by advancing claims
of natural or juridical persons although they do not have its nationality. Such approach does not
seem to find support. I have no intention, though, to deal with this important question in depth since
in this case there are two reasons why the nationality of the Saiga cannot be established
retroactively and certainly not through conduct of Saint Vincent and the Grenadines.

33. It is well established in international law that the primary requisite for the making of an
international claim is the existence of an interest recognized by law at the time the alleged violation
of that interest occurred. This condition is not fulfilled since the Saiga did not have the nationality
at the time of the arrest and later conduct of Saint Vincent and the Grenadines cannot cure this
deficit. Apart from that, the Convention on the Law of the Sea rules out that a State becomes the
flag State of a ship retroactively and by mere conduct. According to the Convention, flag States
have the duty to "effectively exercise" their jurisdiction and control in several matters over ships
flying their flag (article 94 of the Convention); they have further obligations, in particular, in
relation to manning, seaworthiness, collision prevention, construction, and crew qualification in
conformity with generally accepted international regulations, procedures and practices. Article 94,
paragraph 4, of the Convention details some of the measures that a flag State must adopt to ensure
regular surveys; appropriate equipment and instruments for the safe navigation of the ship; and
appropriate qualifications for the masters, officers, and crew. Further flag State obligations in
relation to vessel source pollution are set out in article 211, paragraph 2, of the Convention. In
addition, the flag State must comply with applicable international rules and standards established for
the prevention of pollution. The respective link between the flag State and the ships concerned
being the necessary precondition for the implementation and enforcement of such international rules
is established through the registration of ships and their acquiring the respective nationality. As
already indicated, article 91, paragraph 1, of the Convention leaves it to the States to prescribe the
national rules which specify the conditions for registration. But the said provision does not allow a
State to claim the flag State position in international proceedings although there is no valid
registration when the very State considers this to be in its interest and to reject it if its interests so
require.

34. Finally, I disagree with the reference to the Judgment of the Tribunal of 4 December 1997
where the Saiga was described as “an oil tanker flying the flag of Saint Vincent and the
Grenadines”. If such a reference was felt to be necessary for factual accuracy, then it should have
been equally indicated in the Judgment that this was a reference to the narrative part of the
Judgment of 4 December 1997 (paragraph 26) and that this Judgment further stated: “As far as the
ownership of the vessel is concerned, the Tribunal notes that this question is not a matter for its
deliberation under article 292 of the Convention and that Guinea did not contest that Saint Vincent
and the Grenadines is the flag State of the vessel.” Nothing, and this is my second argument against
the inclusion of paragraph 71 in the Judgment, can be taken as to suggest that a respective finding
had already been made by the Tribunal. This would not accurately reflect the content of this
Judgment as can already be seen from its paragraph 44. The statement in paragraph 44 of the
Judgment of 4 December 1997 should further be seen against the background of the respective
submissions. Counsel of Saint Vincent and the Grenadines stated during the oral proceedings on
28 November 1997 in response to a question from the Agent of Guinea about the ownership of the
vessel: “We have been able to obtain this morning a provisional certificate of registration from Saint
Vincent and the Grenadines which unfortunately, although dated 14 April 1997, is dated to expire

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on 12 September 1997. Efforts are being made to obtain the no longer provisional but full
certificate of registration on behalf of the owners. We hope that we will be able to get this to the
Tribunal at the latest during the adjournment” (ITLOS/PV.97/2, p. 5, 15-20). In retrospect the
statement of Counsel of Saint Vincent and the Grenadines to which also the Separate Opinion of
President Mensah and the Dissenting Opinion of Judge Warioba refer, concealed not only that there
was a gap in registration but that the Permanent Certificate of Registration which was promised to
be delivered was issued only the very same day.

35. I endorse the statement made in paragraph 73(c) of the Judgment namely that the persistent
failure of Guinea to question the assertion of Saint Vincent and the Grenadines that it was the flag
State of the Saiga when it had every reasonable opportunity to do so precluded Guinea of the
opportunity to challenge the nationality of the Saiga at this stage. This statement lacks, however,
adequate reasoning.

36. International law has developed mechanisms which, in fact, preclude a party from raising
particular objections or claims due to the preceding conduct of that party, namely estoppel and
acquiescence. The concepts of acquiescence and estoppel, irrespective of the status accorded to
them by international law, both follow from the fundamental principles of good faith and equity.

37. The rule of estoppel operates so as to preclude a party from denying before a tribunal the truth
of a statement or a fact made previously by that party to another whereby the other has acted to his
detriment or the party making the statement has secured some benefit. It is the prime objective of
the rule of estoppel to preclude a party from benefiting from its own inconsistency to the detriment
of another party who has in good faith relied upon a representation of facts made by the former
party. The International Court of Justice has phrased the rule of estoppel as follows in its Judgment
in the Temple of Preah Vihear case:

[T]he principle operates to prevent a State contesting before the Court a situation
contrary to a clear and unequivocal representation previously made by it to another State,
either expressly or impliedly, on which representation the other State was, in the
circumstances, entitled to rely and in fact did rely, and as a result that other State has
been prejudiced or the State making it has secured some benefit or advantage for itself.
(I.C.J. Reports 1962, pp. 143-144)

38. In the Delimitation of the Maritime Boundary in the Gulf of Maine case the I.C.J. stated:

The Chamber observes that in any case the concepts of acquiescence and estoppel,
irrespective of the status accorded to them by international law, both follow from the
fundamental principles of good faith and equity. (I.C.J. Reports 1984, p. 305, para. 130)

39. Two forms of estoppel are recognized in international jurisprudence, namely estoppel by
treaties, compromis etc. and estoppel by conduct.

40. The Judgment should have considered as to whether the conclusion of the 1998 Agreement
estopped Guinea from questioning the registration/nationality of the Saiga at the time of arrest
since, in theory, such kind of treaties may contain elements relevant thereto, in particular if they

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affirm facts or assessments which cannot be questioned later on. However, as has been pointed out
in the judgment in the Salem case (UNRIAA vol. II, at p. 1180), the wording has to be clear in
acknowledging the facts in question. The Agreement of 1998 does not refer to Saint Vincent and
the Grenadines as the flag State of the Saiga; it refers instead to “the dispute between the two States
relating to the MV ‘Saiga’”. This does not amount to a recognition that Saint Vincent and the
Grenadines has been accepted as the flag State of the ship at the time of its arrest. Some inspiration
may be gained in this respect from the judgment in the Salem case. The respective compromis
referred to Salem as an American citizen. Nevertheless, the arbitral tribunal allowed Egypt to
challenge Salem's American nationality.

41. However, the conduct of Guinea after the arrest of the Saiga and in particular in the
proceedings in the M/V “SAIGA” case (prompt release) points in the direction that it considered
Saint Vincent and the Grenadines to be the flag State. For example, Saint Vincent and the
Grenadines was referred to in the cédule de citation as the flag State and it was not challenged as
such in the proceedings of the M/V “SAIGA” case (prompt release). Finally, Guinea has entered
into negotiations with Saint Vincent and the Grenadines concerning the formulation of the bank
guarantee for the release of the ship and has accepted such a guarantee from Saint Vincent and the
Grenadines. All these actions or inactions of Guinea could be taken by Saint Vincent and the
Grenadines that Guinea would not challenge the status of the latter as a flag State.

42. The Judgment should have further examined whether Guinea had acquiesced in Saint Vincent
and the Grenadines as the flag State of the Saiga. The conduct of Guinea after the arrest of the ship
and, in particular, in the proceedings in the M/V “SAIGA” case (prompt release) clearly point in this
direction.

43. The doctrine of acquiescence has been applied, either expressly or implicitly, as a principle of
substantive law. As the International Court of Justice has stated in the Gulf of Maine case the
doctrine of acquiescence has, as the doctrine of estoppel, its basis in the concepts of equity and good
faith. The case law referred to considers acquiescence to be a type of qualified inaction. There
seems to be some uncertainty in international jurisprudence as to what are the prerequisites to
establish a binding effect of inaction. It is, however, common ground that the acquiescing State
must have remained inactive although a protest or action would have been required (see Judgment
of the International Court of Justice in the Arbitral Award Made by the King of Spain on 23
December 1906 [Honduras v. Nicaragua], Judgment, I.C.J. Reports 1960, pp. 192-217). That is
exactly the case here. Guinea should have raised the lack of registration of the Saiga at the outset of
the proceedings in the M/V “SAIGA” case (prompt release). By remaining inactive in this respect
and by negotiating the conditions of the bank guarantee to be submitted by Saint Vincent and the
Grenadines for the release of the ship and by finally accepting the bank guarantee Guinea accepted
Saint Vincent and the Grenadines as the flag State. It would be contrary to good faith if Guinea
were now allowed to reverse its position; it is barred from invoking the lapse of registration between
the expiry of the Provisional Certificate of Registration and the issuing of the Permanent Certificate
of Registration.

44. The Judgment states that in the particular circumstances of the case it would be unreasonable
and unjust if the Tribunal were not to deal with the merits of the case. Although I agree with this
statement in substance it would have been appropriate to deal with this issue in depth. In particular,

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it was necessary to explain which circumstances led to this conclusion. The Judgment should have
referred to the fact that a decision of the Tribunal to dismiss the claims advanced by Saint Vincent
and the Grenadines on the ground that the Saiga was not registered at the time of its arrest would
have been highly detrimental for those who suffered most from the arrest, namely the members of
the crew and the owner of the cargo. They, however, had no influence on the management of the
ship and, in particular, on its proper registration. The gap in registration was, apart from that, the
result of a lax administrative practice on the side of Saint Vincent and the Grenadines and the lack
of diligence requested from the shipowner rather than the result of intent. The willingness of the
shipowners to maintain the ship’s registration was not contested. Finally, it is to be taken into
consideration that otherwise Guinea would have been saved, without any justification, from the
consequences of the arrest of the Saiga which the Judgment rightly qualified as having been illegal
and undertaken with excessive use of force. For these reasons justice required as already indicated
to preclude Guinea from raising the lack of registration of the Saiga at the time of its arrest. I would
like, however, to emphasize that this is possible only since Guinea in the first place did not object to
Saint Vincent and the Grenadines as the flag State of the Saiga. The statements in paragraph 73(c)
and (d) of the Judgment are thus to be considered to form a unit.

45. Finally, the Tribunal should have noted in the context of registration that the differences
between the parties concerning the nationality of the Saiga were the result of unusual features in the
legislation of Saint Vincent and the Grenadines, a certain laxity in the administrative practices of the
authorities called upon to implement the rules concerning registration and a laxity on the side of the
shipowners concerning the proper registration of the Saiga. The Merchant Shipping Act of Saint
Vincent and the Grenadines opens the possibility of provisional registration for one year, a period
which clearly goes beyond that allowed under the national law of other States. The Act further does
not provide clear rules for a removal of ships from the Register of Ships and on the effective
implementation of such decision or event. The authorities of Saint Vincent and the Grenadines do
not seem to intervene in cases where there is, as it was referred to, a lapse of registration. This
legislation of Saint Vincent and the Grenadines combined with the administrative practice is likely
to weaken the link between it and the ships flying its flag although this link is essential for the
implementation of the international rules referred to in article 94 of the Convention. I agree with the
assessment of President Mensah in his Separate Opinion in this respect.

Exhaustion of local remedies

46. I agree with the Judgment that Guinea cannot successfully challenge the admissibility of
certain claims advanced by the Applicant by invoking that local remedies have not been exhausted
for the reasons set out in paragraph 100. However, I disagree with the statement and the supporting
arguments advanced in paragraphs 98 and 99 of the Judgment. The subject matter of the case
before the Tribunal is not only one which encompasses direct violations of the rights of Saint
Vincent and the Grenadines. In qualifying the claims made and exempting them from the scope of
the exhaustion of local remedies rule the Judgment deviates without appropriate reasoning from the
jurisprudence of the International Court of Justice.

47. It is well established by customary international law that local remedies have to be exhausted
before a State may bring an international claim for injuries to its nationals committed in the territory
of another State. In order for a State to espouse such a claim it must establish that the alleged

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injured person was a national at the time of the injury and continuously thereafter, at least up to the
date of the formal presentation of the claim. Furthermore, the person whose claims are espoused is
required to have exhausted all remedies reasonably available through the domestic institutions of the
State alleged to have caused the injury. There are exceptions to this rule and it may also be waived.

48. It is well accepted that where a State expressly sues in right of diplomatic protection, an
examination of the exhaustion of local remedies is mandatory. It is equally accepted that where the
claim made by the claimant State is one of direct injury and involves no injury to its nationals as
such, the exhaustion of local remedies rule does not apply since the rule does not require a claimant
State to have recourse to the domestic remedies available under the legal system of another State. It
is therefore crucial to establish whether the injury in question is to be qualified as a direct injury of
the claiming State. The Judgment states in this respect: “None of the violations of rights claimed by
Saint Vincent and the Grenadines, as listed in paragraph 97, can be described as breaches of
obligations concerning the treatment to be accorded to aliens. They are all direct violations of the
rights of Saint Vincent and the Grenadines. Damage to the persons involved in the operation of the
ship arises from those violations. Accordingly, the claims in respect of such damage are not subject
to the rule that local remedies must be exhausted.” According to the dictum of the International
Court of Justice in the ELSI case (I.C.J. Reports 1989, pp. 42-43 and 51) claims to be exempt from
the scope of the exhaustion of local remedies rule have to be “- both distinct from, and independent
of”, the dispute of the alleged violation in respect of the individuals involved. To decide whether
this is the case does not depend upon the wording of the claims made, it is rather necessary to
determine the nature of the injury and the rights violated.

49. Although the Submissions No. 1, 2, 4, 5, 7 and 8 are phrased in terms of violations of rights of
Saint Vincent and the Grenadines it can hardly be denied that the dispute would not have occurred
without the arrest of the Saiga by the authorities of Guinea. It is further beyond question that the
arrest of the Saiga had negative implications predominantly for the owner of the ship, its charterer
and its crew. This is reflected by the Judgment. It awards compensation mainly to members of the
crew, the captain, the owner and the charterer of the vessel (see operative paragraph 3 and Annex),
however, no compensation to Saint Vincent and the Grenadines directly.

50. The crucial question to be decided is whether this is a case whose subject matter is the alleged
violation of the rights of a State, i.e. Saint Vincent and the Grenadines, or whether its subject matter
also covers alleged violations of rights of individuals. To be more concrete it is decisive whether
the freedom of navigation and the freedom not to be subjected to illegal hot pursuit invoked by Saint
Vincent and the Grenadines is a right of States only or also a right of ships.

51. The wording of the respective provisions of the Convention concerning the freedom of
navigation (articles 58 and 87) seem to point into the former direction whereas article 111,
paragraph 8, of the Convention points into the latter. Article 87 of the Convention, to which article
58 refers, deals with freedoms of States although such freedoms are excercised, in practice, mostly
not directly by States but rather by natural or juridical persons. However, article 111, paragraph 8,
of the Convention provides that in the case of illegal hot pursuit - which constitutes an infringement
of the freedom of navigation - the illegally arrested ship will be compensated. According to article
110, paragraph 3, of the Convention a ship having been subject to an illegal visit on the high seas
equally has the right to claim compensation. Since in international law the right to receive

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compensation depends upon the pre-existence of an internationally protected right whose violation
gives rise to international responsibility, both provisions indicate that the freedom of navigation
incorporates a right of natural or juridical persons, too. This is indirectly confirmed by two
provisions of the Convention. Article 295 of the Convention provides that local remedies are to be
exhausted, where required under international law, before a dispute between States Parties may be
submitted to a dispute settlement procedure provided for under the Convention. If, as the Judgment
seems to indicate, disputes concerning the interpretation or application are only disputes between
States Parties arising from alleged violations of States' rights, article 295 of the Convention would
be meaningless. This, however, would violate one of the most basic rules concerning the
interpretation of international treaties, namely that interpretation should not render a provision
inoperative. Finally, according to article 292, paragraph 2, of the Convention the application for the
prompt release of a vessel may be made by the flag State or on its behalf. The second alternative of
that provision opens the possibility for the flag State to entrust the entity whose interests are directly
at stake to initiate the respective proceedings. This again recognizes that disputes concerning the
exercise of freedom of navigation, in general, involve rights of natural or juridical persons which
may prevail over the rights of States. Accordingly, the concept of freedom of navigation has as its
addressees States as well as individual or private entities. Every other interpretation would run
counter the objective of the Convention on the Law of the Sea. If the freedom of navigation would
be interpreted as the freedom of States only it would be limited to the right of States to have ships
flying their flag. However, such definition would not take into consideration that the concept of
freedom of navigation encompasses, as stated by the Permanent Court of International Justice in the
Oscar Chinn case:

According to the conception universally accepted, the freedom of navigation referred to

by the Convention comprises freedom of movement for vessels, freedom to enter ports,
and to make use of plant and docks, to load and unload goods and to transport goods and
passengers. (Oscar Chinn, Judgment, 1934, P.C.I.J., Series A/B, No. 63, p. 83)

52. Although this definition of the concept cannot be applied without modification to the freedom
of navigation at sea it is beyond doubt that this freedom comprises activities undertaken by
individuals or private entities rather than by States. Accordingly, it is questionable to qualify claims
resulting from infringements upon the right of freedom of navigation as interstate disputes.

53. The provisions of the Convention indicate that concerning freedom of navigation the rights of
States and those of individuals are interwoven. It is significant that - in respect of the freedom of
fishing - article 116 of the Convention refers to the right of States for their nationals to engage in
fishing. A similar wording would have appropriately qualified the freedom of navigation.

54. Applying the test developed by the International Court of Justice in the ELSI case (I.C.J.
Reports 1989, pp. 42-43, paragraph 51) whether local remedies are to be exhausted this means that,
to the extent the subject matter of a dispute concerns an alleged violation of the freedom of
navigation, it is impossible to find a dispute over alleged violations of the Convention which is both
distinct from, and independent of, a dispute over the alleged violation of the rights of the ship
involved.

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55. Guinea could, however, not successfully invoke the exhaustion of the local remedies rule
since this rule is only applicable if a prior voluntary link exists between the individual and the
Respondent State (see Ian Brownlie, The Rule of Law in International Affairs, 1998 at p.104). In
consequence it does not apply, as the Judgment rightly points out (paragraph 100), in cases where
the State having taken measures acted outside the scope of its jurisdiction. In particular, when a
State had no jurisdiction concerning the measures taken, as it is the case here, the requirement to
exhaust local remedies would amount to a recognition of the jurisdiction of that State. This is
certainly not the objective of the concept on the exhaustion of local remedies.

Relationship between the Convention and national law

56. In paragraph 121 the Judgment states that the Tribunal is “competent to determine the
compatibility of such laws and regulations with the Convention”. This statement should, in spite of
the reference to the jurisprudence of the Permanent Court of International Justice, not be construed
as to limit the competences of the Tribunal. In fact its competences are, as a result of the
progressive development of international law through the Convention, much broader. For example,
according to article 58, paragraph 3, of the Convention States shall “comply with the laws and
regulations adopted by the coastal State in accordance with the provisions of this Convention”. This
means that States are not only bound by the Convention but also by the respective national law
enacted by coastal States.

57. National law plays a particular role in respect of the legal regime governing the use and
management of the sea. The Convention is to be considered as a framework agreement; it provides
for further rules to be enacted by States, in particular coastal States, international organizations or
international conferences. Those rules, to the extent they are in accordance with the Convention,
supplement the latter and hence they are covered by the jurisdiction of the Tribunal. This is
explicitly stated in article 297, paragraph 1(b), of the Convention. According to it the compulsory
procedures for the settlement of disputes provided for in section 2 of Part XV of the Convention
cover cases where it has been alleged that a State in exercising, for example, the freedom of
navigation has acted in contravention of laws or regulations adopted by the coastal State. On that
basis the Tribunal could and should have stated that already the law of Guinea does not provide a
basis for the arrest of the Saiga.

Costs

58. The Judgment has refrained from awarding costs to the successful party. I agree with this
decision for the reason that I consider it inappropriate to take such a decision although the Tribunal
was mandated to do so as long as it has not established general rules and criteria concerning the
assessment of costs and their distribution. If such rules and criteria had been established previously
I would have agreed to award reasonable costs and necessary expenses to the successful party.

(Signed) Rüdiger Wolfrum

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 SEPARATE OPINION OF JUDGE ZHAO

I voted in favour of the Judgment in the M/V “SAIGA” (No. 2) case. However, I have my
own opinion concerning the thorny issue of “bunkering and freedom of navigation”.

1. The Applicant alleges that offshore bunkering is a global multi-million dollar industry
involving all of the major oil companies and numerous independent companies. It tries to give
the impression that bunkering is a lawful activity on the high seas falling within the freedom of
navigation.

Indeed, some States or regions regard offshore bunkering as among their principal
activities, as illustrated by the Applicant. This does not mean, however, that bunkering has
become a universal practice of States. Far from it, among the 35 offshore bunkering companies
illustrated by the Applicant (Reply on behalf of Saint Vincent and the Grenadines, 19 November
1998, pp. 12–13), none is from the UK, France, Italy, Spain, Belgium or Austria in West Europe,
or from East European or North American countries except one. None is from China, Russia,
Japan, India, Indonesia, Brazil or Argentina, among others. Accordingly, bunkering can hardly
be considered as a lawful global industry involving all the major companies.

2. This case presents the question whether bunkering fishing vessels in the contiguous zone or
in the exclusive economic zone of a State is freedom of navigation or internationally lawful uses
of the sea pursuant to article 58, paragraph 1, of the Convention. In other words, is bunkering an
aspect of high-seas freedom of navigation?

Bunkering by its very nature is a means of evading customs duties of coastal States. The
Applicant admits that it is usually preferable not to bunker in the territorial waters of a State
because duties may be payable. The coastal States of West Africa were also well aware of the
problem of “the control and regulation of customs and fiscal matters related to economic
activities” in the exclusive economic zone, as the proposal of 18 African States at the Third
United Nations Conference on the Law of the Sea and an earlier proposal by Nigeria
demonstrate.

The word “navigation” means nothing but “the act of navigating” or “the making of
voyages at sea”. According to article 58, paragraph 1, of the Convention:

In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject
to the relevant provisions of this Convention, the freedoms referred to in article 87 of
navigation … and other internationally lawful uses of the sea related to these freedoms,
such as those associated with the operation of ships ... .

Article 90 (right of navigation) also provides: “Every State, whether coastal or land-
locked, has the right to sail ships flying its flag on the high seas.” Not a single mention of
bunkering or the like is made in the 1982 Convention. That is to say, there is no legitimate status
for bunkering in the law of the sea.

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 I share the view that international law should at all times distinguish between navigation
and the commercial activities of a shipping business. International lawyers and international
litigation always draw a distinction between freedom of navigation and the freedom to trade, the
freedom to carry goods and the freedom of movement of shipping.

3. The Applicant submits that bunkering is an aspect of the high-seas freedom of navigation
or an internationally lawful use of the sea related thereto, which, under article 58, paragraph 1, of
the Convention, the M/V Saiga enjoys in the exclusive economic zone of Guinea. It should be
pointed out, however, that bunkering of fishing vessels in the exclusive economic zone is not
navigation under the Convention. The exclusive economic zone, as a zone with its own legal
status, is neither a part of the high seas, nor the territorial sea. Uses of the sea with regard to
which the Convention has not expressly attributed rights or jurisdiction in the exclusive
economic zone to the coastal State do not automatically fall under the freedom of the high seas.
Therefore bunkering must not be regarded as falling within the high seas freedom of navigation
or related to it. It is not navigation of the M/V Saiga that is involved, but its commercial
activities of offshore bunkering in the exclusive economic zone of Guinea. The interpretation
that freedom of navigation includes bunkering and all other activities and rights ancillary to it is
incorrect. The view that bunkering is free in the exclusive economic zone because it is free on
the high seas is legally not tenable.

4. In short, bunkering should not be encouraged, let alone without restraint. On the contrary,
the following conditions are generally required for bunkering: (1) For States wishing to
undertake bunkering activities in the exclusive economic zone to enter into agreement with the
coastal State; and (2) for fishing vessels to obtain licences or approval for bunkering from those
States. Unless it is conducted in accordance with these two conditions, there is no legitimate
status for bunkering in the law of the sea.

(Signed) Lihai Zhao

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 SEPARATE OPINION OF JUDGE NELSON

I am in agreement with the Tribunal’s Judgment but have reservations on a few points
and observations on others.

Admissibility

I agree with the Tribunal that the object and purpose of the 1998 Agreement was “to
transfer to the Tribunal the same dispute that would have been the subject of the proceedings
before the arbitral tribunal” (paragraph 51). The Tribunal also argues, correctly, in my opinion,
that “[b]efore the arbitral tribunal, each party would have retained the general right to present its
contentions”, which would presumably cover Guinea’s right to present objections to
admissibility. However, I cannot follow the argument that the parties have “the same general
right” before the Tribunal in spite of the terms of the 1998 Agreement. The implication seems to
be that the transference of the dispute to the Tribunal somehow also carried with it the right for
Guinea to raise objections other than the objection specifically mentioned in the 1998 Agreement
i.e. “the objection as to jurisdiction raised in the Government of Guinea’s Statement of Response
dated 30 January 1998”. The dispute has been transferred but the faculty of making other
objections has not been.

Guinea has based its right to submit objections to the admissibility of the application on,
inter alia, the travaux préparatoires of the Agreement. At the oral pleadings (ITLOS/PV.99/8)
Guinea referred to the correspondence between the parties which, in its view, supported its
argument that objections to admissibility were not precluded from being raised. It referred in
particular to Mr. Howe’s letter of 29 January 1998. The relevant part of this letter stated that
Saint Vincent and the Grenadines would agree to submit the dispute to the Tribunal provided the
following provision, inter alia, was included:

the proceedings be limited to a single phase dealing with all aspects, including the merits
and any jurisdictional issues that may arise. (This letter is reproduced in Annex 1 to the
Counter-Memorial of Guinea.)

The 1998 Agreement by Exchange of Letters between Guinea and Saint Vincent and the
Grenadines includes the following provision, inter alia:

The written and oral proceedings before the International Tribunal for the Law of the Sea
shall comprise a single phase dealing with all aspects of the merits (including damages
and costs) and the objection as to jurisdiction raised in the Government of Guinea’s
Statement of Response dated 30 January 1998.

The phrase “any jurisdictional issues that may arise” was thus not repeated in the 1998 Agreement
and was whittled down to one specific objection.

The language is clear and unambiguous. The Tribunal is empowered to deal “with all
aspects of the merits (including damages and costs) and the objection as to jurisdiction raised in
the Government of Guinea’s Statement of Response dated 30 January 1998”. It is established

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law that the primacy of the text is the basis for the interpretation of a treaty. The essence of this
textual approach is to be found in article 31 of the Vienna Convention on the Law of Treaties.

Resort to preparatory work can only be had to determine the meaning when the
interpretation according to article 31 leaves the meaning ambiguous or obscure or leads to a
result which is manifestly absurd or unreasonable (article 32 of the Vienna Convention on the
Law of Treaties). The dictum in the advisory opinion concerning the Conditions of Admission of
a State to Membership in the United Nations (Article 4 of Charter) clearly states the rule in this
matter.

The Court considers that the text is sufficiently clear; consequently, it does not feel that it
should deviate from the consistent practice of the Permanent Court of International
Justice, according to which there is no occasion to resort to preparatory work if the text
of a convention is sufficiently clear in itself. (Advisory Opinion, 1948, I.C.J. Reports
1947-1948, p. 63)

This is the case here. To my mind the plain meaning of the terms of the Agreement
seems to rule out any resort to the travaux préparatoires as supplementary means of
interpretation in accordance with article 32 of the Vienna Convention on the Law of Treaties.

Saint Vincent and the Grenadines has raised the argument that the objection to the
admissibility of the application was time-barred through the operation of article 97,
paragraph 1, of the Rules of the Tribunal which reads as follows:

Any objection to the jurisdiction of the Tribunal or to the admissibility of the application,
or other objection the decision upon which is requested before any further proceedings
on the merits, shall be made in writing within 90 days from the institution of
proceedings.

The Tribunal in its Judgment has, correctly in my view, interpreted this rule as
meaning that “the time-limit in the article does not apply to objections to jurisdiction or
admissibility which are not requested to be considered before any further proceedings on the
merits”. This exegesis of article 97, paragraph 1, of the Rules of the Tribunal is very much
in keeping with the interpretation placed upon the relevant rule of the Permanent Court of
International Justice – article 38 (1926 and 1931).

The Court stated that:

The object of this article was to lay down when an objection to the jurisdiction may
validly be filed, but only in cases where the objection is submitted as a preliminary
question, that is to say, when the Respondent asks for a decision upon the objection
before any subsequent proceedings on the merits. It is exclusively in this event that the
article lays down what the procedure should be and that this procedure should be
different from that on the merits. (Rights of Minorities in Upper Silesia (Minority
Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 22)

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 Moreover it must be remembered that the Tribunal itself possesses an inherent right to
determine its own jurisdiction – compétence de la compétence. This right is formally embodied
both in article 288, paragraph 4, of the Convention on the Law of the Sea and article 58 of the
Rules of the Tribunal. With respect to the International Court of Justice this right was expressly
invoked in its Judgment in the Appeal Relating to the Jurisdiction of the ICAO Council [India v.
Pakistan]. India had contested Pakistan’s right to put forward objections to jurisdiction because
these objections were not put forward at an earlier stage of the proceedings before the Court as
“'preliminary' objections under Article 62 of the Court’s Rules (1946 edition)”. The Court stated
that: “It is certainly to be desired that objections to the jurisdiction of the Court should be put
forward as preliminary objections for separate decision in advance of the proceedings on the
merits. The Court must however always be satisfied that it has jurisdiction, and must if
necessary go into that matter proprio motu” (Judgment, I.C.J. Reports 1972, p. 52).

An eminent authority on the procedure of the World Court has noted that:

The cases illustrate the non-exhaustive character of preliminary objection proceedings, in

the sense that whether or not matters of jurisdiction have been raised at the stage
envisaged for preliminary objections, they may still be raised later, even by the Court
proprio motu.1

He has also observed that:

In various forms, such as a plea in bar or a pre-judicial question, it now appears that
questions of jurisdiction and of admissibility and perhaps of the propriety of the Court’s
deciding a given case can arise at almost any stage of a lawsuit.2

For these reasons I am in agreement with the Tribunal’s findings that Guinea’s objections
to admissibility should be dealt with by the Tribunal.

Registration

The M/V “Saiga” was granted a Provisional Certificate of Registration under the
Merchant Shipping Act of Saint Vincent and the Grenadines on 14 April 1997. The expiry date
of this Provisional Certificate was 12 September 1997. A Permanent Certificate of Registration
was issued by the authorities of Saint Vincent and the Grenadines on 28 November 1997. On the
basis of these facts Guinea has argued that the M/V “Saiga” was not validly registered in the
period between 12 September 1997 and 28 November 1997. Thus the ship was not registered at
the time of the arrest – 28 October 1997. At the oral hearings Guinea concluded that since the
Provisional Certificate was not extended and since there was no automatic extension of the
Provisional Certificate under the terms of the Merchant Shipping Act the M/V “Saiga” was a
vessel without nationality when it was arrested.

1
Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996 (1997), Vol. II, p. 909.
2
Ibid., “Lessons of the Past and Needs of the Future”, in Increasing the Effectiveness of the International Court of
Justice (1997), Connie Peck and Roy S. Lee, eds., p. 476.

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 A provision in the Saint Vincent and the Grenadines’ Merchant Shipping Act which has
played a significant role in the matter is section 36(2) which reads as follows:

The provisional certificate of registration issued under subsection (1) shall have the same
effect as the ordinary certificate of registration until the expiry of one year from the date
of its issue.

On the basis of this provision Saint Vincent and the Grenadines contended that:

The effect of a provisional certificate of registration can be shortened in one case only.
By Section 37, registration ceases at the end of 60 days if the Applicant fails to provide,
during that time, sufficient evidence that the vessel has been removed from its former
register and has been duly marked. In the case of The Saiga, that evidence was supplied
within the 60 day period so the vessel did not cease to be registered. The effect of a
provisional certificate was the same as that of an ordinary certificate until the expiry of
one year; that is, until 11 March of the following year. (ITLOS/PV.99/16)

For its part Guinea puts a different meaning to section 36(2). It argues that:

This provision prescribes that a provisional certificate of registration shall have the same
effect as the ordinary certificate until the expiry of one year from the date of its issue. …
In other words a provisional certificate cannot be valid for longer than one year, no
matter what the circumstances are. Therefore the registrar for example could not issue a
provisional certificate for more than 12, [for instance] for 13 months; that he could not
do. (ITLOS/PV.99/8)

That is, in my opinion, the correct interpretation of this provision. In short a provisional
registration cannot be valid for longer than one year. It cannot, in my submission, mean that a
provisional certificate is always in effect even if it is issued for six months.

I have therefore concluded that in the case of the registration of the M/V “Saiga” there
has been at least some irregularity, that is the failure to extend the provisional registration or to
obtain a permanent certificate after the expiry of the provisional registration which may have
compromised the validity of the registration. As a result I have some difficulty in accepting the
bald conclusion in paragraph 73(a) of the Judgment which reads as follows:

[I]t has not been established that the Vincentian registration or nationality of the Saiga
was extinguished in the period between the date on which the Provisional Certificate of
Registration was stated to expire and the date of issue of the Permanent Certificate of
Registration.

However I agree with the conclusions reached by the Tribunal in paragraph 73(b) and (c),
in particular paragraph (b), of the Judgment. There is sufficient evidence to show that Saint
Vincent and the Grenadines always considered the ship as having its nationality. Its conduct
throughout this affair manifestly demonstrates this. Thus I support the conclusion that “in the
particular circumstances of this case, the consistent conduct of Saint Vincent and the Grenadines

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provides sufficient support for the conclusion that the Saiga retained the registration and
nationality of Saint Vincent and the Grenadines at all times material to the dispute” (emphasis
added).

Although this argument was not raised by the parties nor dealt with by the Tribunal, the
question may be asked whether the Tribunal is debarred from questioning the regularity and
validity of the registration of the M/V “Saiga”. In this respect the dictum of the United States
Supreme Court in the case of Lauritzen v. Larsen, 345 U.S. 571 (1953) could be recalled which
reads as follows:

Perhaps the most venerable and universal rule of maritime law relevant to our problem is
that which gives cardinal importance to the law of the flag. Each state under
international law may determine for itself the conditions on which it will grant its
nationality to a merchant ship, thereby accepting responsibility for it and acquiring
authority over it. Nationality is evidenced to the world by the ship’s papers and its flag.
The United States has firmly and successfully maintained that the regularity and validity
of a registration can be questioned only by the registering state.

The view that the regularity and validity of a registration can be questioned only by the
registering State has been supported by some acknowledged authorities on the law of the sea.
See, among others, Colombos, The International Law of the Sea (1967), p. 290, and McDougal
and Burke, The Public Order of the Oceans (1987), p. 1060.

O’Connell has, on the other hand, stated:

Whether a ship is entitled to claim attribution to a State is a matter in the first instance for
the law of that State to determine. But it cannot be said that other States and their courts
are denied competence to ascertain if the ship’s documentation is properly completed,
and the flag that is worn really indicates the ship’s nationality.3

This view, in my submission, seems correct if only for the reason that such an approach
would better serve the international legal order of the oceans. Thus the Tribunal is entitled to
examine the regularity and validity of the registration of the M/V “Saiga” and the matter does
not fall within the exclusive domain of Saint Vincent and the Grenadines. However the principle
in Lauritzen v. Larsen is not altogether without relevance. By throwing into relief the
predominant role of the registering State with respect to matters relating to the validity of
registration, it justifies to a certain extent the importance which the Tribunal has attributed to the
conduct of Saint Vincent and the Grenadines as a registering State.

There is a final remark to be made on this issue. To treat ships in the circumstances
raised by the M/V “Saiga” as having no nationality and as a consequence “stateless” could have
disturbing repercussions on the maintenance of the legal order of the oceans and possibly also on

3
O’Connell, The International Law of the Sea (1984), Vol. 2, p. 756. See too H. Meyers, The Nationality of Ships
(1967), p. 181.

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private maritime law.4 Gidel once wrote: “La nationalité du navire – règle de droit international
– est la condition primordiale de l’utilisation paisible de la haute mer.”5

Proposals which were not accepted by the Third United Nations Conference on the Law of
the Sea

Saint Vincent and the Grenadines has drawn on the travaux préparatoires of the
Conference in order to confirm the proposition that:

[W]ith the single exception of Article 60(2), the Convention establishes no right for a
coastal State to adopt customs laws and regulations within the exclusive economic zone.

It noted that:

A number of States sought to include a provision in what was to become Article 56 to the
effect that coastal States had the right to prescribe and enforce customs laws and
regulations within the economic zone. Those efforts were expressly rejected; after
August 1974 no composite drafting texts contained any such proposal, limiting any
reference to application of customs jurisdiction in any area of the exclusive economic
zone to artificial islands, installations and structures in the manner incorporated in Article
60(2) of the 1982 Convention. (Memorial, para. 127)

In its oral pleadings Guinea contended that the travaux préparatoires illustrate that
coastal States in Africa, at least West Africa, “were well aware of the problem of the ‘control
and regulation of customs and fiscal matters related to economic activities’ in the EEZ as the
proposal of 18 States at the second session of the LOS Conference and an earlier proposal by
Nigeria demonstrate. Although they have not expressly been included in the Convention, it
would be misleading to conclude from this, as Saint Vincent and the Grenadines does, that the
coastal States do not have jurisdiction to control and regulate customs and fiscal matters related
to economic activities” in the EEZ (ITLOS/PV.99/14, p. 26, and see also Rejoinder of Guinea,
para. 87).

This argument of Guinea, in my opinion, deserves comment, given its far-reaching

implications. As is well known, both formal and informal proposals purporting to apply customs
legislation within the exclusive economic zone were submitted and discussed at the Third United
Nations Conference on the Law of the Sea. The draft articles on the exclusive economic zone of
26 August 1974 put forward by 18 African States6 provide an example. Article 3, paragraph (c),
reads as follows:

4
Under the Convention on the Law of the Sea a warship is entitled to board and search a ship on the high sea which
is without a nationality (article 110, paragraph 1(d)). Fishing vessels on the high seas which are without nationality
have been specially mentioned as being subject to similar treatment (article 21, paragraph 17, of the Agreement for
the Implementation of the Provisions of the United Nations Convention on the Law of the Sea, 10 December 1982
relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks).
5
Document A/CN.4/32, Secretariat Memorandum attributed to Gidel, Yearbook of the International Law
Commission (1950), Vol. II, p. 74. See also Gidel, Le droit international public de la mer (1932), Vol. 1, p. 230.
6
Gambia, Ghana, Ivory Coast, Kenya, Lesotho, Liberia, the Libyan Arab Republic, Madagascar, Mali, Mauritania,
Morocco, Senegal, Sierra Leone, Sudan, Tunisia, the United Republic of Cameroon, the United Republic of

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 A coastal State shall also have exclusive jurisdiction within the exclusive economic zone,
inter alia, for the purposes of:
...
(c) Control and regulation of customs and fiscal matters related to economic activities in
the zone.

Such proposals were not accepted by the Conference and as Saint Vincent and the
Grenadines has already pointed out did not appear in the Informal Single Negotiating Text nor in
any subsequent revisions and of course did not find a place in the 1982 Convention on the Law
of the Sea.

The view that “these drafts [which] have not been included in the overall compromise
concerning the exclusive economic zone at the Conference allows no formal conclusion
whatsoever”7 or “that it would be misleading to conclude ... that the coastal State does not have
jurisdiction to control and regulate customs and fiscal matters relating to economic activities in
the EEZ” seems, in my view, to contain within it the seeds of destruction of the Convention. It
would have the startling result that proposals which have not been accepted by the Conference
would somehow still remain like shades waiting to be summoned, as it were, back to life if and
when required.

The function of international courts and tribunals, as has been so often said, is to interpret
and not revise treaties.8 If the approach advocated by Guinea were to be followed this Tribunal
would certainly be engaged in the task of revising and not interpreting the Convention. It cannot
be the function of this Tribunal to reconstruct the Convention. That is far from saying that the
Tribunal should disregard the development of customary international law.

(Signed) L. Dolliver M. Nelson

Tanzania and Zaire (A/CONF.62/C.2/L.82), Official Records of the Third United Nations Conference on the Law of
the Sea, Vol. 3, p. 241. To the same effect see Nigerian draft articles on the exclusive economic zone of 5 August
1974, A/CONF.62/C.2/L.21/Rev.1, ibid., p. 199.
7
Rejoinder of Guinea, paragraph 87.
8
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 229; Rights of Nationals of the United States of America in Morocco, Judgment, I.C.J. Reports
1952, p. 196; and the Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., Series B, No. 7, p. 20.

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 SEPARATE OPINION OF JUDGE CHANDRASEKHARA RAO

1. While endorsing the operative holdings of the Tribunal in the Judgment, I have considered
it necessary to append this separate opinion to emphasize certain aspects, which I consider
essential from the legal standpoint. I do not necessarily agree with all the reasons given by the
Tribunal in support of its holdings. In particular, my disagreement concerns the reasons on
which the Tribunal has based its Judgment in respect of two issues: registration of the Saiga and
the exhaustion of local remedies.

2. The facts and the rival contentions of Saint Vincent and the Grenadines and Guinea on the
question of registration of the Saiga are as stated in the Judgment. However, I do not agree with
the inferences drawn from them by the Tribunal. The Saiga was registered provisionally on
12 March 1997 as a Saint Vincent and the Grenadines ship under section 36 of the Merchant
Shipping Act of 1982 of Saint Vincent and the Grenadines (hereinafter “the Merchant Shipping
Act”). The Provisional Certificate of Registration, issued to the Saiga on 14 April 1997, stated:
“This Certificate expires on 12 September 1997”. The Registry Book of Saint Vincent and the
Grenadines showed that the provisional registration of the Saiga was recorded on 26 March 1997
and that it was valid till 12 September 1997. The Saiga was arrested by the Guinean officers on
28 October 1997. It was issued a Permanent Certificate of Registration on 28 November 1997.

3. Guinea contended that the claims of Saint Vincent and the Grenadines in this case were
inadmissible on a number of grounds, the main ground being that, at the relevant time, i.e., when
the Saiga was arrested on 28 October 1997, the Saiga was not registered as a Saint Vincent and
the Grenadines ship and that, consequently, Saint Vincent and the Grenadines was not competent
to present its claims. This raises the question whether Saint Vincent and the Grenadines was the
flag State in relation to the Saiga at the relevant time.

4. It is not the claim of either party that the Provisional Certificate of Registration was not
validly issued in terms of section 36 of the Merchant Shipping Act of 1982. Therefore, as stated
in the Provisional Certificate, it should be taken as having expired on 12 September 1997. It is
obvious that, if the provisional registration were to continue after the expiry of the Provisional
Certificate of Registration, it must either be replaced by another provisional certificate or have its
expiry date extended. It was not even alleged that any such action was taken in the present case.

5. What then is the basis for the Judgment to hold that the registration of the Saiga under the
laws of Saint Vincent and the Grenadines had not been extinguished in the period between the
expiry of the Provisional Certificate of Registration and the issue of the Permanent Certificate of
Registration? Paragraph 67 of the Judgment refers to two bases: (i) the Merchant Shipping Act,
and (ii) certain "indications of Vincentian nationality on the ship or carried on board". To deal
first with the so-called indications of Vincentian nationality, it is not clear how they by
themselves are capable of keeping the provisional registration alive. In any event, the Merchant
Shipping Act does not say so. Though not so stated in the Judgment, the main basis for the
holding that the provisional registration continued even after 12 September 1997 is section 36(2)
of the Merchant Shipping Act which provides:

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 The provisional certificate of registration issued under subsection (1) shall have the same
effect as the ordinary certificate of registration until the expiry of one year from the date
of its issue.

6. The parties disagreed on the legal effects of section 36(2). Whereas Saint Vincent and the
Grenadines argued that, by virtue of section 36(2), “the provisional certificate continued to have
the same effect as an ordinary certificate for one year, measured from 12 March 1997”, Guinea
contended that section 36(2) could not be read as having that effect and that it was designed to
specify that a provisional certificate could not be issued for more than a period of one year from
the date of issue.

7. It is pertinent here to know how section 36(2) is being applied in practice in Saint Vincent
and the Grenadines. No decision of its municipal courts has been cited in favour of one
interpretation or the other. However, Saint Vincent and the Grenadines appended to its
Memorial a brochure issued by its Maritime Administration. This brochure explains the
procedure for registration as it obtains under the Merchant Shipping Act. It states, among other
things: “The provisional registration certificate is issued for six months and can be extended,
under certain circumstances, for a further period of six months” (emphasis supplied). This
statement, which was reiterated in the course of the oral proceedings, should, therefore, be taken
as representing the Vincentian official interpretation of the meaning and scope of section 36(2).
The Tribunal must apply this section as it would be applied in Saint Vincent and the Grenadines
(see Brazilian Loans, Judgment No. 15, 1929, P.C.I.J., Series A, No. 21, p. 93 at p. 124).

8. The aforesaid statement signifies that the total validity period of a provisional certificate
cannot go beyond one year from the date of the issue, that a provisional registration certificate is
issued for six months and not for one year, that it requires extension if it were to be valid for
more than the initial period of six months, and that such extension can be given “under certain
circumstances”. If this be so, it is illogical to hold that, by virtue of section 36(2), a provisional
certificate issued for a period of six months would continue to be valid for a one-year period
even when it fails to receive extension and without regard to the “circumstances” of the case.

9. There is also clear admission by Saint Vincent and the Grenadines that the validity period
of the Provisional Certificate of Registration was allowed to be lapsed. In a letter dated
1 March 1999, which was submitted to the Tribunal in the course of the oral proceedings, the
Vincentian Deputy Commissioner for Maritime Affairs explained that “it is very common for
Owners to allow the validity period of the initial Provisional Certificate to lapse for a short
period before obtaining either a further Provisional Certificate or a Permanent Certificate (as was
the case here)”. This explanation too clearly supports the proposition that once a provisional
certificate expires a further provisional certificate or a permanent certificate will have to be
obtained. And, as noted earlier, it is not the case of Saint Vincent and the Grenadines that a
further certificate was either applied for or given. The only certificate that was issued after 12
September 1997 was the Permanent Certificate of Registration.

10. The Vincentian argument that, when a vessel is registered under its flag, “it remains so
registered until deleted from the Registry” is not supported by any provision of the Merchant
Shipping Act or outside authority. Even if the Saiga was shown in the Vincentian Registry Book

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after the expiry of the Provisional Certificate of Registration, as claimed by Saint Vincent and
the Grenadines, it does not follow that the provisional registration was kept alive. Once a
provisional registration is allowed to lapse, it can be revived only by obtaining a further
certificate.

11. Under the Merchant Shipping Act, a merchant ship acquires Vincentian nationality through
registration. Since the Saiga remained without registration in the period between the expiry of
the Provisional Certificate of Registration and the issue of the Permanent Certificate of
Registration, I am clearly of the opinion that Saint Vincent and the Grenadines was not, at the
relevant time, the flag State of the Saiga for purposes of the United Nations Convention on the
Law of the Sea of 10 December 1982 (hereinafter “the Convention”).

12. Even if Saint Vincent and the Grenadines was not the flag State at the relevant time, the
question remains whether the Vincentian claims are inadmissible vis-à-vis Guinea. The conduct
of both the parties, following the arrest of the Saiga, is relevant in this regard. Saint Vincent and
the Grenadines has always acted as if it was the flag State of the Saiga since the inception of the
dispute. It was in that capacity that it invoked the jurisdiction of this Tribunal under article 292
of the Convention for the prompt release of the Saiga and its crew as also under article 290 for
the prescription of provisional measures. Guinea too did not raise the question of the ship’s lack
of registration at the time when it seized the ship’s papers following the arrest of the Saiga. In
the decisions of the judicial authorities of Guinea, Saint Vincent and the Grenadines was stated
to be the flag State of the Saiga. Having failed to challenge the status of Saint Vincent and the
Grenadines as the flag State of the Saiga at all material times when it ought to have done so for
protecting its rights, it is not open to Guinea now to contend that it discovered a new fact on the
issue of registration which was unknown to it prior to the filing of the Memorial. Guinea has to
blame its own negligence in this regard. Principles of fairness clearly demand that a State is not
allowed to act inconsistently, especially when it causes prejudice to others.

13. I may now deal with the Guinean objection based on the non-exhaustion of local remedies
to the admissibility of the Vincentian claims. Saint Vincent and the Grenadines argued that the
local remedies rule did not apply in this case, since the Guinean actions amounted to a direct
violation of its rights under the Convention and general international law, Guinea contended that
Saint Vincent and the Grenadines was not competent to institute its claims, since the persons
who were affected by Guinean actions were natural or juridical persons and they did not exhaust
the local remedies in Guinea, as required by article 295 of the Convention. The Judgment
upholds the Vincentian argument in this regard. I do not, however, think that the Vincentian
argument is well-founded and, if accepted, would greatly diminish the efficacy of article 295 of
the Convention.

14. The reliefs sought by Saint Vincent and the Grenadines in this case arise mainly from
Guinea’s wrongful exercise of the right of hot pursuit under article 111 of the Convention.
Paragraph 8 of that article provides: “Where a ship has been stopped or arrested outside the
territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it
shall be compensated for any loss or damage that may have been thereby sustained.” The word
“it” in this paragraph refers to the ship and not to its flag State. It is not, therefore, open to a flag
State to contend that every wrongful exercise of the right of hot pursuit involves direct violation

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of its rights rather than of those of the ship. This is in contrast, for instance, with article 106 of
the Convention, which deals with liability for seizure of a ship or aircraft without adequate
grounds. The article provides that in such a case “the State making the seizure shall be liable to
the State the nationality of which is possessed by the ship or aircraft for any loss or damage
caused by the seizure". Article 106, unlike article 111, thus provides that it is the flag State
which is entitled to claim reliefs for any loss or damage caused by the wrongful seizure.

15. When article 111, paragraph 8, states that it is the ship which is to be compensated, the
expression “ship” here is a symbolic reference to everything on the ship and every person
involved or interested in the operations of the ship. In short, all interests directly affected by the
wrongful arrest of a ship are entitled to be compensated for any loss or damage that may have
been sustained by such arrest.

16. Since, as found earlier, this is a case of a ship’s entitlement to compensation, in principle,
the local remedies in Guinea are required to be exhausted by the persons affected by the arrest of
the Saiga before Saint Vincent and the Grenadines could bring their claims to this Tribunal.
However, I agree with the Judgment that, on the facts of this case (see paragraphs 100 and 101 of
the Judgment), the parties concerned were not obliged to exhaust local remedies. In this view of
the matter, the Guinean objection based on the non-exhaustion of local remedies deserves to be
dismissed.

(Signed) P. Chandrasekhara Rao

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 SEPARATE OPINION OF JUDGE ANDERSON

I have voted for operative paragraphs (3), (7), (8) and (9) of the Judgment for reasons
which differ in certain respects from some of the argumentation set out in the preceding
paragraphs of the Judgment.

In the spirit of article 8, paragraph 6, of the Resolution on the Internal Judicial Practice of
the Tribunal, this separate opinion will concentrate on these points of difference without
traversing the whole ground.

Nationality of the Saiga

The question of the nationality of the Saiga, which divided the Tribunal, arose indirectly.
The real issue for decision was whether to uphold or reject Guinea's objection to the locus standi
of Saint Vincent and the Grenadines (“St. Vincent”) to bring claims before the Tribunal in the
capacity of the flag State of the Saiga. It was this issue of standing which led to the detailed
consideration of what is a technical question of nationality and ship registration, not connected in
the slightest way with the reasons for the arrest. It was accepted by all that the Saiga had
Vincentian nationality during certain periods both before and after its arrest. The difference
between the parties was whether or not the Saiga had Vincentian nationality during a short
period around the end of October 1997 when the ship was arrested. The rival contentions are set
out in paragraphs 58 to 61 of the Judgment and need not be repeated here. Paragraph 73 sets out
the Tribunal's conclusion on the issue of nationality, a conclusion which I endorse for the
following reasons.

Paragraph 73(a)

The law of the sea has long recognised the quasi-exclusive competence of the flag State
over all aspects of the grant of its nationality to ships1. This aspect of the law is now codified in
the Convention, particularly article 91. In addition, as part of the modern law, article 94 imposes
detailed obligations on the flag State in respect of all ships flying its flag, including initial
obligations relating to registration. There is authority for the propositions that: (1) the regularity
and validity of a registration can be questioned only by the registering State2; and (2) no State
has the right to criticise the conditions governing the attribution of the flag by another State or to
refuse to recognise this flag, except in the circumstances provided for in article 92, paragraph 2,
concerning the status of ships3. These propositions remain generally applicable in inter-state
relations, although (as article 92, paragraph 2, indicates) there still exist the general requirements
on the part of the State granting its nationality to act in good faith and to respect the comparable
rights of other States to grant their nationality to ships. (I do not read paragraph 83 of the
Judgment as going so far as to say that the requirement of a “genuine link”, which contains an
element of good faith in the word “genuine”, has no relevance at all to the grant of nationality.)
In the first instance, the attribution of nationality is a matter for the law of the State concerned.

1
The Montijo and Muscat Dhows cases.
2
Colombos, International Law of the Sea, 6th edition (1967), p. 289, quoting the decision of the U.S. Supreme Court
in Lauritzen v. Larsen 345 U.S. 571 (1953).
3
Dupuy and Vignes, eds., A Handbook on the New Law of the Sea, v. 1 (1991), p. 405.

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Consequently, the scope, both substantively and procedurally, for other States to challenge the
regularity and validity of a particular registration is strictly limited. In this respect, Part XV of
the Convention contains procedures available to States Parties to the Convention, a point noted
in paragraph 65 of the Judgment.

Turning to the present case, I endorse the approach taken by the Tribunal in paragraphs
62 and 66 to the effect that, on the basis of the Convention, the issue is one of fact to be decided
on the evidence, including factual evidence as to the law of St. Vincent. In support of their
contentions, the parties submitted the documentation summarised in the Judgment. St. Vincent
submitted the text of the Merchant Shipping Act 1982, as amended (“the Act”), which appeared
to have been intended amongst other things to implement in its law the terms of articles 91, 92
and 94 of the Convention. However, the parties advanced rival contentions as to the meaning
and effect of the Act in regard to the facts of the case. They differed also over the weight to be
attached to the wording of the Saiga’s certificates as opposed to the terms of the Act. Guinea
pointed to the lapse of the Provisional Certificate; St. Vincent pointed to the Act and denied any
lapse in the validity of the registration and nationality.

The arguments thus advanced by the parties indicated the existence of an issue with
regard to the status of the Saiga on 27 and 28 October 1997, namely whether or not the
nationality of the Saiga had lapsed upon the expiry of the six-month period of validity specified
on the face of the Certificate. This was an issue, concerning registration, which arose under the
law of St. Vincent. The Deputy Commissioner for Maritime Affairs and the legal representatives
of St. Vincent advanced an interpretation of its legislation against the background of the facts of
the Saiga’s registration. It led St. Vincent to the conclusion that the Saiga had been
provisionally registered in March 1997 and remained so registered on 27 and 28 October 1997.
Guinea challenged this interpretation, advanced an alternative one and came to the opposite
conclusion.

Faced with this situation, what was the role of the Tribunal? In my opinion, the Tribunal
was not called upon to resolve what amounted to a disputed issue arising under the local law.
(The same was true in regard to the question of Guinean law mentioned in paragraph 119 of the
Judgment.) The Tribunal was not called upon to decide whether St. Vincent’s interpretation or
the rival interpretation of Guinea was the legally correct one, nor was it in a position to do so. I
express no opinion here on what amounts to a question of the interpretation and application of
the law of St. Vincent. Only a court with jurisdiction to apply the law of St. Vincent could give
an authoritative ruling on the question. Were the issue to come before such a court, it would
have the benefit, unlike the Tribunal, of full disclosure of the documentary evidence and of oral
testimony of witnesses as to what exactly had happened in 1997, as well as full legal argument.

Rather, the question for decision was whether St. Vincent's standing, based on the
Vincentian nationality of the ship, had been sufficiently established to the satisfaction of the
Tribunal or whether, on the other hand, the objection of Guinea had been substantiated. In other
words, the question was one of standing and of fact, to be determined on the basis of the
contentions of the parties and the rules of international law concerning the proof of the
attribution of nationality to ships pursuant to article 91 and related provisions of the Convention.

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 For present purposes, it was enough, in my view, to consider whether or not the
interpretation advanced by St. Vincent was included within the range of the possible or
permissible interpretations which may be placed on the wording of the legislation. To that end, it
may be noted that section 36(2) reads:

The provisional certificate of registration issued under subsection (1) shall have the same
effect as the ordinary certificate of registration until the expiry of one year from the date
of its issue.

The administrative practice of the Commissioner for Maritime Affairs was explained to
be to issue provisional certificates for six months (the Deputy Commissioner's letter of 1 March
1999). The Act does not refer to the period of six months, which appears to be an administrative
time limit and shorter than the period of one year mentioned in the Act. The Act does not
contain a provision to the effect that the provisional registration is “deemed to be closed upon”
either full registration or the expiry of the period specified on the face of the certificate,
whichever first occurs. An example of such a provision, employing the form of words quoted in
the preceding sentence, is to be found in Regulation 21(1) of the Merchant Shipping Ordinance
of Gibraltar, another common law jurisdiction with legislation similar in many ways to the Act of
St. Vincent (apart from the more usual maximum period for provisional registration of 90 days
instead of St. Vincent’s full year). In the result, section 36(2) appears to me to be capable of
bearing the meaning that a provisional certificate which is expressed on its face to be valid for
six months retains the same effect as an ordinary certificate of registration even after the expiry
of the six months during a further period extending up to the statutory maximum of one year. On
that basis, St. Vincent’s interpretation falls within the range of possible interpretations of its
legislation. It follows that St. Vincent’s “initial burden of proof” (the test adopted in paragraph
72 of the Judgment) was discharged, in my view.

The counter-argument of Guinea was to the effect that this interpretation was untenable
and that section 36(2) bore a different meaning. Taking the latter point, this meaning confined
the effect of section 36(2) to a prohibition of provisional registration for a period extending
beyond twelve months. To my mind, that prohibition was an additional possible meaning. It did
not represent the only meaning or exhaust the possible meanings of the provision. The two
possible meanings advanced by the parties were not mutually exclusive. Reverting to the first
point, I was not persuaded by the simple assertion that the argument of St. Vincent was
untenable. Moreover, before an international body the competent administrative officers and
legal representatives of a State must be presumed to know the law of that State. There was
insufficient reason to decide that, in effect, the government of St. Vincent has misconstrued its
own legislation or was acting in bad faith. Only the strongest evidence would have allowed the
Tribunal to have reached such a conclusion, evidence which was not present in this case. For
these reasons, Guinea failed to discharge the burden of sustaining its objection to the locus standi
of St. Vincent by proving its contention that a gap existed in the registration.

Finally, the change of flag from Malta to St. Vincent and the change of name took place
after a real change of ownership. There was no evidence of the use of the Maltese flag on the
part of the new owners of the ship. The evidence given to the Tribunal by St. Vincent
concerning the closure of the Maltese registration took the form of a statement to the effect that

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“other acceptable evidence” of the closure of the Maltese registration had been produced to the
competent authority, as required by section 37 of the Act. On the question of this evidence, I
agree with the conclusion in paragraph 70 of the Judgment.

Paragraph 73(b) and (c)

Paragraph 73 of the Judgment also alludes to the conduct of the two parties in its
subparagraphs (b) and (c).

As regards subparagraph (b), St. Vincent showed that it had acted consistently as the
Saiga’s flag State, both before and after the filing of the objection by Guinea (paragraph 68 of
the Judgment). There was also evidence showing that the obligation regarding registration laid
down in article 94 of the Convention had been fulfilled in the case of the Saiga; and there was no
evidence of a subsequent failure to comply with other requirements in that article in regard to the
ship. In this respect, the conduct of St. Vincent carries particular significance in view of the
predominant role of the registering State over the grant of nationality. (On this point, I share the
view of Judge Nelson, set out in his Separate Opinion.) In my view, this conduct by St. Vincent
corroborates its legal argument concerning the question of nationality and the underlying issue of
its standing to bring the case before the Tribunal.

Turning to subparagraph (c), the conduct of Guinea (as noted in paragraph 69 of the
Judgment) over a period of several months was consistent with its acceptance of the locus standi
of St. Vincent. Thus, Guinea’s conduct in first citing St. Vincent in the proceedings in Conakry
and then seeking to deny the latter’s status as the flag State in proceedings before the Tribunal
arising from the same facts (including a claim relating to that same citation), appears to be
“blowing hot and cold” and is not easy to reconcile with the principle allegans contraria non est
audiendus. Moreover, the conclusion of the Agreement of 1998 also amounts to relevant
conduct. By the terms of this Agreement, Guinea agreed that the Tribunal should deal with “all
aspects of the merits” of the dispute with St. Vincent concerning the Saiga. The merits are
different from the question of locus standi. Although the Agreement did not describe St. Vincent
as the flag State of the Saiga in express terms, the only possible capacity in which St. Vincent
was involved was that of the flag State, it not being the State of nationality of the shipowners, the
crew, the cargo-owners, etc. St. Vincent’s locus standi to conclude the Agreement rested solely
upon the Vincentian nationality of the Saiga. In the proceedings before the Tribunal, Guinea
subsequently submitted that the Tribunal should reject the claims as inadmissible on the ground
inter alia that St. Vincent was not the flag State and thus lacked standing. Now, I agree with the
Tribunal’s finding that the Agreement of 1998 “does not preclude the raising of objections to
admissibility by Guinea” (paragraph 51) over issues such as exhaustion of local remedies and
nationality of claims. However, I still retain doubts about the finding in regard to the objection
to the specific issue of locus standi. The conclusion of the Agreement and its terms are both
fully consistent with the unequivocal acceptance of St. Vincent’s standing as the flag State of the
Saiga and the Agreement is the basis of the Tribunal’s jurisdiction. The conclusion of the
Agreement remains relevant conduct and in my opinion that conduct displayed inconsistency
which the Tribunal could not overlook.

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 In conclusion on these questions of nationality and conduct, St. Vincent was able in my
view to establish, on the balance of probabilities and having regard to the predominant role of the
registering State in the matter of nationality, that the Saiga possessed Vincentian nationality on
the relevant dates. The consistent conduct of St. Vincent supported that conclusion. The
conduct of Guinea prior to the delivery of its Counter-Memorial was inconsistent with its
subsequent objection to St. Vincent’s standing before the Tribunal, first presented in the
Counter-Memorial. In my view, paragraph 73(d) of the Judgment should be seen in the context
of the respective conduct of the parties, as dealt with in paragraph 73(b) and (c), and the general
principle of fairness in international legal proceedings.

Finally on this subject, having seen the separate opinion of Vice-President Wolfrum, I
wish to associate myself with his criticisms of the administrative practice of St. Vincent in the
matter of provisional registration as described in the Deputy Commissioner's letter of 1 March
1999.

Arrest of the Saiga

I have voted for the finding in operative paragraph (7) of the Judgment to the effect that
the arrest, etc. of the Saiga in respect of its bunkering activity on 27 October 1997 violated the
rights of St. Vincent. A coastal State is not empowered by the Convention to treat bunkering in
its contiguous zone or EEZ as amounting ipso facto to the illegal import of dutiable goods into
its customs territory, without further proof of matters such as the entry of the goods into its
territory or territorial sea. By doing so in this instance, Guinea, in my opinion, went beyond
articles 33 and 56 and failed to respect article 58 of the Convention.

I also endorse the decision recorded in paragraph 138 of the Judgment not to make any
general findings on questions of bunkering in the EEZ. These questions are far from being
straightforward. Today, bunkering is conducted under all manner of different circumstances and
may involve distinct types of recipient vessels, including passenger vessels, warships, cargo
ships and fishing vessels. For example, immediately before and after taking on bunkers, a
recipient vessel may be exercising the freedom of navigation. In such a case, its bunkering could
well amount to an “internationally lawful use of the sea” related to the freedom of navigation and
“associated with the operation of ships” within the meaning of article 58, paragraph 1, of the
Convention. To take a different example, a fishing vessel may be engaged in fishing in the EEZ
with permission and subject to conditions established in the laws and regulations of the coastal
State, consistent with the Convention (in particular, its article 62, paragraph 4). Here, the accent
is not so much on the navigation of the fishing vessel as upon its efficient exploitation of the
stocks in accordance with the terms of its licence. Yet again, a fishing vessel may also be in
need of bunkers whilst navigating in transit between its home port and some distant fishing
grounds. And the supply of bunkers to a ship which has run out of fuel as a result of a mishap
may also have a safety or humanitarian dimension. Several other examples could be imagined.
Plainly, the Tribunal could not address such varied situations in the abstract and without the
necessary materials and evidence. The Tribunal was right to confine its decision to the particular
question of the application of customs and fiscal legislation to bunkering in the EEZ which arose
in this case and to leave aside the many other possible questions.

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Hot Pursuit

The right of hot pursuit is one of the exceptions provided for in the Convention to the rule
of exclusive flag State jurisdiction stated in article 92, paragraph 1. I fully share the finding in
paragraph 149 of the Judgment that the conditions set out in article 111 are cumulative. Yet,
article 111 contains sufficient flexibility to permit the arrest of suspected smugglers or poachers
who attempt to flee when ordered to stop. In this case, Guinea satisfied the requirement in article
111, paragraph 5, that the right be exercised by a naval or customs vessel marked as being on
government service. Patrol vessels P328 and P35 were specifically authorised to undertake the
mission. However, other conditions contained in article 111 were not satisfied in this instance.

First, the activity of the small patrol vessel P35 on 27 October 1997, described in
paragraph 150, amounted in my view to nothing more than a fruitless search for a possible
suspect vessel, prompted by intercepted radio messages.

Secondly, the evidence produced with regard to the events described in paragraph 151
discloses no more than suspicions on the part of the patrol vessels at 0400 hours on 28 October
1997. A suspicion is something less than the “good reason to believe” required by paragraph 1
of article 111. The Customs document PV29 contained much information concerning the
bunkering of the three fishing vessels which was first obtained from the Saiga's log book and the
questioning of the Master. From a reading of the terms of the judgments handed down by the
two criminal courts in Conakry, much of the evidence produced in the proceedings against the
Master of the Saiga was obtained only after the arrest of the ship, thereby putting in doubt the
existence before that time of sufficient information to amount to “a good reason to believe”.

Thirdly, article 111, paragraph 1, requires that an order to stop must be received before
pursuit begins. Even if the Tribunal had been willing in principle (and after due consideration of
the point) to consider the possibility of accepting as an auditory signal a radio message sent over
a distance of 40 miles or so, the alleged signal from P328 could still not have been deemed to
constitute a valid signal in the absence of any evidence of: (1) the sending of the message from
P328 (e.g. a recording on board P328 or an entry in its log book setting out the text of the order
and the time of its transmission); and (2) more importantly, the receipt of the message by the
Saiga and the latter’s understanding of the message as an order to stop by officials of Guinea
(e.g. from the Saiga’s tape recordings of its incoming radio traffic or an entry in its log book).
Moreover, there was other evidence which tended to show that, far from having received any
intimation of the approach of the patrol vessels, the Saiga was taken completely by surprise by
their arrival, whilst drifting outside Guinea’s EEZ, over four hours after the time of the alleged
signal. In the circumstances, the Judgment in paragraph 151 rightly concludes that there was
insufficient evidence to establish that an order was given and received.

Finally, P35 did not approach the Saiga in the accepted manner for law enforcement
vessels. Instead, P35 fired live rounds which, according to the testimony of two witnesses, broke
bridge and cabin windows on board the Saiga. Occasionally, when there is good reason to
believe that a ship has violated applicable laws, law enforcement officers may need to use force
in order to arrest suspected smugglers or poachers who fail to respond to orders to stop.
However, as paragraph 156 of the Judgment indicates, force must be resorted to only in the last

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resort and after warnings (including shots across the bow) have been given. Even then, any live
shots must be fired in such way as to avoid endangering the lives of those on board. In order to
ensure respect for these standards, law enforcement officers should receive adequate training in
maritime practices and, if armed, should be provided with specific Rules of Engagement. Some
of the testimony in this case indicated that this had not happened in this instance.
(Signed) David H. Anderson

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 SEPARATE OPINION OF JUDGE VUKAS

(a) Submissions of the parties on the exercise of the right of Saint Vincent and the
Grenadines in the exclusive economic zone of Guinea.

1. Although I do not agree with every single argument and every detail of the analysis of the
Tribunal, I voted in favour of the operative paragraphs of the Judgment (except paragraphs (11)
and (13)) as I do agree with the conclusions they contain.

However, I am obliged to attach this Separate Opinion to the Judgment as I do not fully
share the attitude of the Tribunal in respect of the main submission of both parties. In paragraph
1 of its final submissions, Saint Vincent and the Grenadines asks the Tribunal to adjudge and
declare that:

the actions of Guinea (inter alia the attack on the m/v “Saiga” and her crew in the
exclusive economic zone of Sierra Leone, its subsequent arrest, its detention and the
removal of the cargo of gasoil, its filing of charges against St. Vincent & the Grenadines
and its subsequently issuing a judgment against them) violate the right of St. Vincent &
the Grenadines and vessels flying its flag to enjoy freedom of navigation and/or other
internationally lawful uses of the sea related to the freedom of navigation, as set forth in
Articles 56(2) and 58 and related provisions of the Convention.

In its final submissions, the Government of the Republic of Guinea asked the Tribunal to
adjudge and declare that “the claims of St. Vincent and the Grenadines are dismissed as non-
admissible”. Alternatively, Guinea asked the Tribunal to conclude that:

the actions of the Republic of Guinea did not violate the right of St. Vincent and the
Grenadines and of vessels flying her flag to enjoy freedom of navigation and/or other
internationally lawful uses of the sea, as set forth in Articles 56(2) and 58 and related
provisions of UNCLOS. (paragraph 2)

2. The quoted paragraphs of the final submissions clearly indicate that the basic issue in this
case is the opposite views of the parties concerning the interpretation and application of some of
the provisions of the Convention to which they both are States Parties. Therefore, they
submitted the dispute to the compulsory procedures entailing binding decisions, provided for in
Part XV, section 2, of the Convention. Saint Vincent and the Grenadines first instituted arbitral
proceedings in accordance with Annex VII to the Convention (by the Notification of 22
December 1997), but on 20 February 1998 the two States concluded an agreement transferring
the arbitration proceedings to the Tribunal.

3. As the basic disagreement between the parties is the alleged violation of the right of Saint
Vincent and the Grenadines under “Articles 56(2) and 58 and related provisions of the
Convention”, the opposite claims of the parties should primarily be analyzed and evaluated on
the basis of the provisions of the Convention.

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 The fact that Saint Vincent and the Grenadines as well as Guinea are States Parties to the
Convention does not suffice for the application of Part V of the Convention concerning the
exclusive economic zone in “an area beyond and adjacent to the territorial sea”(article 55) of
Guinea. Namely, unlike the case of the continental shelf (article 77, paragraph 3) and as the
contiguous zone (article 33, paragraph 1), the rights of the coastal State over the exclusive
economic zone depend on an express proclamation of the zone by the respective coastal State.
Guinea proclaimed its exclusive economic zone by Decree No. 336/PRG/80, which entered into
force on 30 July 1980.

Guinea proclaimed also its contiguous zone; in the proceedings, it even claimed that the
Saiga supplied gas oil to the fishing boats in its contiguous zone off the coast of the island of
Alcatraz. However, in the course of the proceedings, its reference to its contiguous zone became
sporadic and inconsistent. It finally based its claims only on its alleged rights to enforce its
customs legislation in its exclusive economic zone. Therefore, I will not deal with the rules on
the contiguous zone, and the possibility that the bunkering activities of the Saiga took place in
the contiguous zone of Guinea.

4. Having established its exclusive economic zone, Guinea put in force the specific legal
régime of the zone, consisting of its rights and jurisdiction, and of the rights and freedoms of
other States, governed by the relevant provisions of the Convention (article 55). The legal
régime of the zone is automatically applied once the zone is proclaimed; it does not need
internal, municipal rules in order to be operative. The ratification of the Convention, and the
proclamation of the zone, suffice for the application of all the rules on the exclusive economic
zone contained in the Convention. Of course, States are entitled to incorporate the provisions of
the Convention into their internal laws and regulations, i.e. to transform into their domestic law
the rules set out in the Convention. They may also formulate additional domestic rules to the
extent that they are not contrary to the Convention and other relevant international rules.

5. Considering, therefore, that since 1980, beyond and adjacent to the territorial sea of
Guinea, there has existed the exclusive economic zone of that State, I do not agree with the
Judgment which bases its scrutiny of the legality of the arrest of the Saiga on the laws and
regulations of Guinea. The Judgment has neglected the relevant provisions of the Convention
directly applicable to the parties. This approach cannot be justified by the mere fact that, after
referring to the relevant provisions of the Convention (see supra paragraph 1), Guinea also
claimed that:

Guinean laws can be applied for the purpose of controlling and suppressing the sale of
gasoil to fishing vessels in the customs radius (“rayon des douanes”) according to Article
34 of the Customs Code of Guinea. (paragraph 3 of the final submissions)

Although in the course of the proceedings Guinea referred to the Customs Code and some
other laws, the main purpose of these references was the claim that neither their content nor their
application to the Saiga violated the Convention.

6. In my opinion, it is indispensable to commence the inquiry concerning the legality of the

actions of Guinea by analyzing the relevant provisions of the Convention.

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 As demonstrated in paragraph 1 above, the parties have opposite views concerning the
content and the application of “Articles 56(2) and 58 and related provisions of the Convention”.
The main provision on the rights of “other States” in the exclusive economic zone is article 58,
paragraph 1, which provides that all States enjoy, “subject to the relevant provisions of this
Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying
of submarine cables and pipelines, and other internationally lawful uses of the sea related to
these freedoms, such as those associated with the operation of ships, aircraft and submarine
cables and pipelines, and compatible with the other provisions of this Convention.”

Article 56, paragraph 2, states that the coastal State, in exercising its rights and
performing its duties under this Convention in the exclusive economic zone, “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”.

Although not specifically indicated in the submissions of Saint Vincent and the
Grenadines, the “related provisions of the Convention” are particularly those which determine
the rights and duties of the coastal State, as their application could interfere with the freedom of
navigation of ships flying its flag.

(b) Arguments of the parties

7. Before any further discussion, it is necessary to recall that the final submissions of Saint
Vincent and the Grenadines (paragraph 1), as well as the corresponding paragraphs in the
Memorial and the Reply, call on the Tribunal generally to protect “the right of St. Vincent & the
Grenadines and vessels flying its flag to enjoy freedom of navigation and/or other internationally
lawful uses of the sea related to the freedom of navigation” from “the actions of Guinea”. The
attack on the Saiga and the subsequent events are mentioned only as an example of the Guinean
actions violating this right of Saint Vincent and the Grenadines and the ships flying its flag.

8. According to the Memorial, freedom of navigation and related rights, guaranteed under
article 58 of the Convention, include bunkering which, therefore, must not be subject to customs
duties or contraband laws in Guinea’s exclusive economic zone.

The last part of paragraph 101 of the Memorial reads:

A priori the right to bunker gas oil within the exclusive economic zone falls squarely
within freedom of navigation rights and other internationally lawful uses of the sea. This
is confirmed by the text of the 1982 Convention (and its travaux préparatoires), by the
Convention’s object and purposes, and by state practice. It is also consistent with
international judicial authority on the extent of coastal state’s rights in the exclusive
economic zone.

Saint Vincent and the Grenadines did not indicate precisely where in the text of the 1982
Convention it has been confirmed that bunkering “within the exclusive economic zone falls
squarely within freedom of navigation rights and other internationally lawful uses of the sea”. It

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also did not provide any evidence that the travaux préparatoires for the Convention supported
the above claim, or at all referred to bunkering.

The only argument of Saint Vincent and the Grenadines concerning the freedom of
navigation, which is based on the Convention, is its claim that the exclusive economic zone is a
zone sui generis (article 55 of the Convention), in which all the “pre-existing rights of states to
exercise high seas freedoms, … including bunkering, … are unaltered, except where subject to
express limits under the 1982 Convention” (Memorial, paragraph 104).

Saint Vincent and the Grenadines did not refer to any “international judicial authority” or
any specific “state practice” supporting its claim concerning bunkering.

9. Guinea, on its side, claimed that bunkering was not included in the high seas freedoms
applicable in the exclusive economic zone. It considered the zone a régime where rights or
jurisdiction which the Convention has not expressly attributed to the coastal State do not
automatically fall under the freedoms of the high seas. Concerning bunkering undertaken by the
Saiga it stated:

Contrary to the Applicant’s opinion that “bunkering is a freedom of navigation right”,

Guinea contends that the M/V “Saiga’s” bunkering of fishing vessels in the Guinean
exclusive economic zone is neither comprised by the freedom of navigation referred to in
article 87 of the Convention, nor does it form any other internationally lawful use of the
sea related to these freedoms, such as those associated with the operation of ships. It is
not navigation of the M/V “Saiga” that is at issue in this case, but its commercial activity
of off-shore bunkering in the Guinean exclusive economic zone. Article 58(1) of the
Convention does not apply to the mentioned bunkering activities which caused Guinea to
take measures against the M/V “Saiga” … . (Counter-Memorial, paragraph 95)

In addition, Guinea made two clarifications which reduce the scope of disagreement of
the parties. First, it distinguishes the situation of the buyer from that of the seller of the fuel:

Obtaining fuel, which is necessary to sail a ship, could reasonably be considered as

ancillary or related to navigation, whereas providing fuel could not. (Counter-Memorial,
paragraph 97)

Thus, a ship buying fuel from a vessel engaged in bunkering in the exclusive economic
zone of a third State does not violate article 58, paragraph 1, of the Convention.

Second, Guinea distinguishes between supplying bunkers to fishing vessels in the

Guinean exclusive economic zone and to other vessels navigating in transit through that zone
(Counter-Memorial, paragraph 101). It opposes only bunkering of fishing vessels, not of other
types of ships.

10. Therefore, on the basis of the mentioned explanations provided by Guinea, it appears that
both parties accept as legal the supplying of bunkers to all other types of ships in transit through
an exclusive economic zone other than fishing vessels. The task of the Tribunal is thus reduced

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to the analysis and adjudication of the conflict of the positions of the parties respecting the
bunkering only of fishing vessels.

In this respect, Saint Vincent and the Grenadines makes no distinction whatsoever. It is
exactly in respect of a case of bunkering fishing vessels by the Saiga that it brought the case to
the Tribunal. Indeed all its argumentation mentioned concerns bunkering in general.

11. On the other hand, Guinea argued against the legality of the supply of bunkers to fishing
vessels in the exclusive economic zone. However, it did not want to base its opposition to the
bunkering of such ships on the regard other States owe to its sovereign rights over the living
resources of its exclusive economic zone. Namely, article 58, paragraph 3, in this respect reads:

In exercising their rights and performing their duties under this Convention in the
exclusive economic zone, States shall have due regard to the rights and duties of the
coastal State and shall comply with the laws and regulations adopted by the coastal State
in accordance with the provisions of this Convention and other rules of international law
in so far as they are not incompatible with this Part.

12. Guinea decided not to base its claim on the rights it is guaranteed, as all other coastal
States, in the exclusive economic zone under article 56, paragraph 1(a). It advanced two
economic reasons for not permitting bunkering of fishing vessels in its exclusive economic zone,
not willing to base them on its sovereign rights granted under article 56, paragraph 1(a). Its first
reason is the following.

Through obtaining fuel at sea, a fishing vessel can spend a longer time fishing on the
fishing grounds and hence can catch a greater amount of fish, before it is bound to call at
a port. Accordingly the coastal State has an interest to regulate offshore bunkering in its
exclusive economic zone as an aspect of its fisheries policies. (Counter-Memorial,
paragraph 104)

The second reason, linked to the first, concerns fiscal interests of Guinea:

Whereas customs revenues on oil products represent at least 33% of the total customs
revenue destined for the Guinean Public Treasury, and whereas only 10% of the fishing
fleet operating in the Guinean exclusive economic zone is flying the Guinean flag,
customs revenues from fishing vessels flying foreign flags are an important fiscal
resource for Guinea. (Counter-Memorial, paragraph 104)

13. Yet, notwithstanding the link of its arguments with fishing, Guinea insists that bunkering
fishing vessels in the exclusive economic zone is not inherent to the sovereign rights of the
coastal State, provided for in article 56, paragraph 1(a), of the Convention. It claims that
“[a]lthough the bunkering activities are ancillary measures of a considerable importance for the
fishing vessels concerned, they constitute neither fishing nor conservation or management
activities with respect to the living resources themselves” (Counter-Memorial, paragraph 106).

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 Guinea also rejected the possibility of using the remaining part of article 56,
paragraph 1(a):

Neither does Guinea contend that the economic activities employed by the M/V “Saiga”
in its exclusive economic zone are “other activities for the economic exploitation and
exploration of the zone, such as the production of energy from [the] water, currents and
winds” in the sense of article 56(1)(a) of the Convention. The activities envisaged in the
mentioned provision are those constituting an exploitation and exploration of the zone
itself and its natural resources, as the example of energy production indicates, whereas
bunkering activities are of a different nature. They are business activities … . Although
these activities are conducted with a view to fisheries and although they represent
ancillary measures for the fishing vessels in the exclusive economic zone, they do not
form an economic exploitation of the zone itself. In conclusion Guinea does not contend
that bunkering the fishing vessels would constitute a part of its sovereign rights in its
exclusive economic zone. (Counter-Memorial, paragraph 108)

14. Having rejected any link of its assertion concerning the bunkering of fishing vessels with
article 56, paragraph 1(a), of the Convention, Guinea eventually points out the legal basis for its
claim.

The first field in which Guinea seeks justification for its action towards foreign tankers
supplying bunkers to fishing ships are rules and principles of general international law. Such
rules and principles, according to Guinea, are referred to in “the last operative sentence of the
preamble to the Convention“ and in article 58, paragraph 3. These rules and principles of
general international law serve as a source of Guinea’s claim that it is justified to exercise
jurisdiction in respect of such bunkering in order to protect its public interest:

Guinea alleges that it has an inherent right to protect itself against unwarranted economic
activities in its exclusive economic zone that considerably affect its public interest.
(Counter-Memorial, paragraph 112)

Endorsing this view throughout the proceedings, Guinea submitted, as a subsidiary

argument, that its actions were justified on the basis of article 59 of the Convention, which reads:

In cases where this Convention does not attribute rights or jurisdiction to the coastal
State or to other States within the exclusive economic zone, and a conflict arises between
the interests of the coastal State and any other State or States, the conflict should be
resolved on the basis of equity and in the light of all the relevant circumstances, taking
into account the respective importance of the interests involved to the parties as well as
to the international community as a whole.

However, Guinea invoked article 59 with some reluctance, as according to its Rejoinder,
article 59 applies only when there is “a lacuna in the law which is not present here” (Rejoinder,
paragraph 86).

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15. In my view, “public interest” cannot be advanced as a reason for departing from the rules
establishing a régime at sea. “Public interest” is not a notion indicating exceptional, momentary
interests of a State, but a constant interest of the entire society of a State. It was exactly on the
basis of the public interests of various participants in the Third United Nations Conference on the
Law of the Sea (hereinafter: UNCLOS III) that the specific legal régime of the exclusive
economic zone was established. The provisions on the rights and duties of coastal States, “other
States”, land-locked States, geographically disadvantaged States, are the result of protracted
negotiations and of a balance of interests of all the groups of States, achieved in the régime of the
exclusive economic zone.

From “public interest”, Guinea switches to “the doctrine of necessity in general

international law” permitting acts of “self-protection” or “self-help” (Rejoinder, paragraph 97;
Counter-Memorial, paragraphs 112 and 113). As far as the application of these
notions/principles in this case is concerned, I share the conclusions reached in paragraphs 132–
135 of the Judgment.

(c) The relevant provisions of the Convention

16. Since the first initiatives for the extension of sovereignty/jurisdiction of coastal States,
which eventually resulted in the establishment of the régime of the exclusive economic zone,
coastal States envisaged the protection of their rights in respect of the natural resources of the
sea. This was the main purpose for the adoption, and the essential element of the content of the
1952 Declaration on the Maritime Zone (the Santiago Declaration), the 1970 Montevideo
Declaration on the Law of the Sea, the 1970 Declaration of the Latin American States on the
Law of the Sea, the 1971 Report of the Subcommittee on the Law of the Sea of the Asian-
African Legal Consultative Committee, the 1972 Declaration of Santo Domingo, the
Conclusions in the 1972 General Report of the African States Regional Seminar on the Law of
the Sea, and of several other instruments adopted by various organizations and groupings of
States.1

Rights over natural resources in the proposed zone were also the dominant concern of
coastal States in the work of the Committee on the Peaceful Uses of the Seabed and the Ocean
Floor beyond the Limits of National Jurisdiction.2

During the drafting of Part V of the Convention, the majority of States participating in
UNCLOS III did not have in mind the protection of other economic activities of coastal States
except the resource-related ones. An early proposal of 18 African States, to insert in the future
Convention a provision on the jurisdiction of coastal States for the purpose of “control and
regulation of customs and fiscal matters related to economic activities in the zone”, and a similar
proposal by Nigeria,3 were reflected in the 1974 Conference document listing the various trends
of the States participating in UNCLOS III (Main Trends Working Paper). However, due to the

1
Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, The Law of the Sea: Exclusive
Economic Zone, Legislative History of Articles 56, 58 and 59 of the United Nations Convention on the Law of the
Sea, United Nations, New York, 1992, pp. 3-13.
2
Ibid., pp. 14-59.
3
Documents A/CONF.62/C.2/L.82 and A/CONF.62/C.2/L.21/Rev.1, ibid., pp. 80-82 and 73-76.

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expressed opposition of several delegations4, customs regulation in the exclusive economic zone
was not mentioned in the drafts of the Convention.

The following paragraph relative to article 59, written by the most authoritative
commentators of the Convention, confirms that in conceiving economic sovereign rights and
jurisdiction of the coastal State, UNCLOS III never reasoned beyond their resource contents:

On issues not involving the exploration for and exploitation of resources, where conflicts
arise, the interests of other States or of the international community as a whole are to be
taken into consideration. (emphasis added)5

17. It appears from all the above mentioned that the drafting history and the content of Part V
of the Convention do not provide valid reasons for considering bunkering of any type of ships as
an illegal use of the exclusive economic zone. In this respect, a note circulated at the beginning
of the fifth session of UNCLOS III by the President of the Conference should be recalled.
Pleading for a consensus on the régime of the exclusive economic zone, the President wrote:

A satisfactory solution must ensure that the sovereign rights and jurisdiction accorded to
the coastal State are compatible with well-established and long recognized rights of
communication and navigation which are indispensable to the maintenance of
international relations, commercial and otherwise. (emphasis added)6

Thus, the President did not see a strict separation of ius communicationis and ius
commercii. It should be stressed that it was only after this President’s appeal that the final
formula of article 58, paragraph 1, was included in the draft of the Convention (Informal
Composite Negotiating Text).

Bunkering should, although as a rather new activity at the time it was not expressly
mentioned at the Conference, be considered an “internationally lawful use of the sea” in the
sense of article 58, paragraph 1, of the Convention. It is related to the freedom of navigation
“and associated with the operation of ships”. This claim is not difficult to defend from the point
of view of navigation as well as international law. Supply of bunkers is the purpose of the
navigation of a tanker, and refuelling is essential for further navigation of the ship to which gas
oil has been supplied. This close relationship of bunkering and navigation with the terms used in
article 58, paragraph 1, forces me to recall here article 31, paragraph 1, of the 1969 Vienna
Convention on the Law of Treaties, to which the parties often referred in their pleadings: “A
treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose”.

(d) Developments after UNCLOS III

4
Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II, pp. 180, 211, 220, 233.
5
Center for Oceans Law and Policy, University of Virginia School of Law, United Nations Convention on the Law
of the Sea 1982, A Commentary, Volume II, S.N. Nandan and Sh. Rosenne, Volume Editors,
(Dordrecht/Boston/London, Martinus Nijhoff Publishers, 1993), p. 569.
6
Document A/CONF.62/L.12/Rev.1, para. 13; Official Records of the Third United Nations Conference on the Law
of the Sea, Vol. VI, p. 123.

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18. Of course, subsequent development of customary law can clarify and/or amend any
previous solution. Guinea wanted to use this usual phenomenon for explaining its claim. Yet,
inadvertently, it provided evidence against its assertion concerning the existence of economic
rights in the exclusive economic zone which are not resource-related:

A recent report on State practice points out that especially African States do either
explicitly recognise international law as the standard for determining any additional
rights beyond those specifically provided for in Article 56 of the Convention or retain
other unspecified rights and jurisdiction in their exclusive economic zone related to the
sovereign rights over the resources. The latter describes exactly what Guinea is
claiming. (Rejoinder, paragraph 94 – emphasis added)

This claim of Guinea opposes its basic reasoning, particularly the statements quoted
above in paragraphs 12 and 13. However, the practice of States in the twenty years after the
acceptance of the régime of the exclusive economic zone at UNCLOS III does not permit a
different conclusion. Namely, in their legislation on the exclusive economic zone, in Africa and
elsewhere, States repeat the provisions of the Convention concerning the rights, jurisdiction and
the duties of coastal States, and on the rights and duties of other States. On the basis of article
56, paragraph 1(a), some of them adopted more elaborate rules, particularly on fisheries, the
establishment of artificial islands, installations and structures, marine scientific research and the
protection of the marine environment. In doing so, they neither go beyond their “sovereign
rights over the resources”, nor do they restrict in any manner the rights or duties of other States
as defined in article 58, paragraph 17. It is interesting to note that the mentioned characteristics
of national legislation are expressed with no difference whatsoever in the collections of national
legislation on the exclusive economic zone published by the United Nations in 1985 and in
19938.

The declarations of States made upon their signature and/or ratification of the
Convention, in accordance with its article 310, do not indicate any significant disagreement with
the régime of the exclusive economic zone as adopted at UNCLOS III.9

19. Guinea itself did not provide a meaningful input into the establishment of any new
customary rule concerning the rights of coastal States. In respect to the legislation it invoked in

7
Bureau du Représentant spécial du Secrétaire général pour le droit de la mer, Le droit de la mer, Evolution récente
de la pratique des Etats, Nations Unies, New York, 1987; Office for Ocean Affairs and the Law of the Sea, The Law
of the Sea: Current Developments in State Practice, No. II, United Nations, New York, 1989: Division for Ocean
Affairs and the Law of the Sea, Office of Legal Affairs, The Law of the Sea: Current Developments in State
Practice, No. III, United Nations, New York, 1992; Division for Ocean Affairs and the Law of the Sea, Office of
Legal Affairs, The Law of the Sea: Current Developments in State Practice, No. IV, United Nations, New York,
1995.
8
Office of the Special Representative of the Secretary-General for the Law of the Sea, The Law of the Sea: National
Legislation on the Exclusive Economic Zone, the Economic Zone and the Exclusive Fishery Zone, United Nations,
New York, 1985: Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, The Law of the Sea:
National Legislation on the Exclusive Economic Zone, United Nations, New York, 1993.
9
Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1997, ST/LEG/SER.E/16,
pp. 801 – 826.

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order to justifiy its actions regarding the Saiga, grosso modo I share the conclusions of the
Tribunal (see, in particular, paragraphs 122, 127 and 136 of the Judgment).

In fact, Guinea offered interesting evidence of its awareness about the insufficiency of its
existing legislation for preventing bunkering of fishing vessels in its exclusive economic zone.
After the arrest of the Saiga, the Government of Guinea undertook an initiative to adopt a decree
expressly regulating “the activity of refuelling fishing boats and other vessels in transit to
Conakry” (draft Joint Decree No.A/98…MEF/MCIPSP/98). In a letter of the National Director
of Customs to the Minister of Economy and Finances, it is expressly stated that the proposed
Decree is “intended to close the current legal loophole in the area of the refuelling of boats, an
activity where the State currently registers large losses in customs revenue” (Counter-Memorial,
paragraph 101, and Annex XVI, p. 9 - emphasis added).

20. In respect to Guinea’s claims and its own legislation, it is interesting to note that an
overview of the practice of States, prepared in 1994 by the Division for Ocean Affairs and the
Law of the Sea of the United Nations Office of Legal Affairs, pointed out the case of an African
State which is quite opposite to the tendency of Guinea. The following quotation demonstrates
the attitude of Namibia, which amended its legislation in order to follow the content of the
régime of the exclusive economic zone under the Convention:

It may be noted that in 1991 Namibia adopted an amendment to section 4(3)(b) of the
Territorial Sea and Exclusive Economic Zone Act of Namibia (1990), which had
provided for the right to exercise powers necessary to prevent the contravention of fiscal
law or any law relating to customs, immigration and health in its exclusive economic
zone. The amendment deletes the reference to such right, which, under article 33 of the
Convention, belongs to the contiguous zone and not to the exclusive economic zone, so
that the Act may conform with the Convention.10

21. However, my conclusion concerning the non-existence of additional international rules

concerning the rights and duties of coastal and/or other States in the exclusive economic zone
beyond those in the Convention does not mean that I rule out the possibility of the development
of such rules by a constant practice of States.

Article 59 of the Convention itself is a confirmation of the awareness of States

participating in UNCLOS III that the specific legal régime they have established has not
attributed all possible rights and jurisdiction to the coastal States or to other States. Therefore,
not only in respect of fishing vessels, but also of other types of ships or specific situations in
which they can find themselves at sea, new rules may be established not only through the
practice of States, but also through other sources of international law.

(Signed) Budislav Vukas

10
Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, The Law of the Sea: Practice of States
at the time of entry into force of the United Nations Convention on the Law of the Sea, United Nations, New York,
1994, p. 36.

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 SEPARATE OPINION OF JUDGE LAING

OVERVIEW

1. As I see it, this case involves, among other things, two major institutions of the law of
the sea. One is the closely-negotiated new institution of the exclusive economic zone; the other
is the venerable freedom of navigation. These institutions have never been the subject of in-
depth judicial scrutiny. Neither has the vaunted internal harmony of the 1982 United Nations
Convention on the Law of the Sea (hereafter “the Convention”). The factual setting of this case
underscores the need for such scrutiny. In this separate opinion, I interpret relevant provisions of
the Convention in a systematic manner in accordance with the rules in articles 31 and 32 of the
1969 Vienna Convention on the Law of Treaties.1 The emphasis is on ascertaining the meaning
of the provisions in their context and in the light of their object and purpose, with reference, as
appropriate, to supplementary means of interpretation.2 As necessary, prior law has also been
referred to. At times, a literary source is doctrine.

2. Based on the Applicant’s submissions, the Tribunal has stated that the main rights claimed
to have been violated by the Respondent are:

(a) the right of freedom of navigation and other internationally lawful uses of the sea;

(b) the right not to be subjected to the customs and contraband laws of Guinea;

(c) the right not to be subjected to unlawful hot pursuit;

(d) the right to obtain prompt compliance with the Judgment of the Tribunal of
4 December 1997;

(e) the right not to be cited before the criminal courts of Guinea.

Regarding these issues, the Tribunal has decided that the application of Guinea’s customs
and related laws in the customs radius violates the rights of Saint Vincent and the Grenadines in
the exclusive economic zone. This is on the basis of (1) incompatibility of those laws of Guinea
with Part V of the Convention, (2) the similar incompatibility of Respondent’s asserted
justification for its actions based on its public interest and Respondent’s failure to satisfy the
1
The 1969 Convention has been described as an “international custom recognized by States”. Guinea/Guinea
Bissau Maritime Delimitation arbitration, 77 I.L.R. 635 (1985) (hereafter “Guinea/Guinea-Bissau arbitration”),
p. 658, para. 41, citing Legal Consequences for States of the Continued Presence of South Africa in Namibia
(I.C.J. Reports 1971, p. 4 at 47, para. 94) and Fisheries Jurisdiction Cases (I.C.J. Reports 1973, p. 3 at 18, para. 36
and p. 49 at 63, para. 36.
2
While the leading commentary, referred to below, is extremely helpful, there are substantial limitations as far as
concerns preparatory work which, in the case of this Convention, is very limited due to the amorphous nature of and
absence of concrete chains of causation between materials and the Convention, its frequent “random and disorderly
character,” the deliberate informality of much of the negotiating process and the limited utility of formal unilateral
statements made at or after the final session of the Third United Nations Conference on the Law of the Sea
(hereafter “UNCLOS III”). See generally Allott, 77 A.J.I.L. (1983) (hereafter “Allott”), p. 7; and United Nations
Convention on the Law of the Sea – A Commentary (M. Nordquist, gen. ed., 1982-1995) (hereafter “Virginia
Commentary”).

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conditions for the application of the so-called state of necessity to justify its actions, and (3) the
Tribunal’s conclusion that, largely as a consequence of the two foregoing sets of decisions, the
asserted hot pursuit by Guinea, which was employed to subject the Saiga to its purported
jurisdiction, was in violation of the Convention. In view of the uncertainty attending Guinea’s
apparent invocation of the Convention’s provisions on the contiguous zone in support of its
actions, the Tribunal has not made a decision about that question.

3. Although not specifically mentioned in the Judgment, these decisions of the Tribunal
logically imply that the Convention requires the non-impairment by coastal States of the freedom
of navigation or other internationally lawful uses of the seas vouchsafed to other States in articles
58, paragraph 3, of Part V and 87–115 of Part VII of the Convention. However, the Tribunal
found that it did not have to address the broader question of the rights of coastal States and other
States with regard to bunkering in the exclusive economic zone.

4. I agree with the Tribunal’s conclusions. However, I find it necessary to provide a more
elaborate exposition of the nature and status of the freedom of navigation in the exclusive
economic zone. In turn, this requires an exposition of the nature and status of the exclusive
economic zone and a general appreciation of national claims related to it. An alternative way of
phrasing the required exercise is the need to examine the respective rights, jurisdiction and
functions of the flag State and coastal State in the above-mentioned maritime space against the
background of the freedom of navigation. Having concluded that exercise, I have found it
necessary to raise some preliminary questions relating to offshore bunkering and two other
matters.

5. The ordinary meaning in immediate context of the pertinent provisions of the Convention
does not adequately serve for the tasks at hand. A systematic contextual interpretation of the
provisions of Parts V and VII that are of intimate relevance does not produce a firm meaning.
Therefore, I have found it useful to consider additional provisions of the Convention that constitute
the broader context of the provisions relied on in the Judgment and others that are pertinent. There
is a considerable number of such contextual provisions, located in Parts II, III, IV, X and XIII of a
Convention which has a significant number of interrelated Parts and provisions. Exposing this
contextual background involves an exposition of several matters not fully covered in the Judgment.
These include the issues relating to the contiguous zone, which are somewhat interrelated to the
facts and legal issues before the Tribunal. As already noted, it has also been necessary to refer to
several supplementary means of interpretation. My discussion will take the following order and
manner:

(1) Contiguous zone.

(2) Freedom of navigation.

There will first be discussed several suggested bases for the freedoms of the high seas
and navigation. Then, in seeking an understanding of the freedom of navigation in the
framework of the exclusive economic zone, the following topics will be examined under various
subheadings:
• the various incidents of freedom of navigation under the Convention;

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• the impact of the Convention’s provisions establishing the exclusive
economic zone institution;
• the impact of other provisions of the Convention;
• conclusion on freedom of navigation.

(3) Some remaining questions.

These are:
• offshore bunkering;
• prompt release;
• settlement of disputes between developing countries.

CONTIGUOUS ZONE

6. The first set of substantive questions concerns the contiguous zone. The parties are
agreed that on 27 October 1997, the Saiga bunkered three non-Guinean vessels in this zone. The
vessels or their cargo were not alleged or proven to have had as an immediate destination
Guinean territorial waters. Although its positions on this seem to have varied at different stages
of the proceedings, at one point at least the Respondent appeared to argue that it had prescriptive
jurisdiction to apply its customs code and a customs-related law, L/94/007, concerning sales
involving transshipments of petroleum in the zone in order to prevent and punish the Saiga’s
acts, which it claimed were contrary to its laws (Respondent’s Counter-Memorial (hereafter
“CM”), pp. 123-25). In the oral proceedings, counsel for the Respondent stated that the Saiga
was hotly pursued (in accordance with the Convention) “because it had bunkered fishing vessels
in the contiguous zone.” In stating the relevant jurisdictional provisions, the Respondent
repeatedly adverted to the customs radius, in which its laws provided that it could take actions of
a “preventive” and “suppressive” nature. Counsel stated that in response to the Saiga’s
“violation committed in the contiguous zone, pursuit commenced at a moment at which the
smuggling ship ... was bunkering in this zone ...” (Uncorrected Verbatim Record (hereafter
“ITLOS/PV.99/…”), ITLOS/PV.99/15, pp. 15-16 (16 March)). In a submission at the end of the
oral proceedings, it was argued on behalf of the Respondent that the bunkering operation of the
ship in the contiguous zone was “of no relevance” in connection with the question “whether or
not Guinea could and did apply its Customs law within its Customs radius”. Yet, later in the
same submissions on Guinea’s behalf, it was argued in a “digression” in answer to the
Applicant’s “repeated” submissions, that Guinea had definitely established a contiguous zone
notwithstanding any possible failure to notify that fact to the United Nations (ITLOS/PV.99/18,
pp. 17-18 (20 March)).

7. The Tribunal has not addressed this question. Nevertheless, it is evident that, for a
period, or from time to time, the Respondent was relying on violations occurring in the
contiguous zone as forming a basis for the hot pursuit that the Respondent claimed to be entitled
to undertake. In relation thereto, while a coastal State’s justifications for actions against foreign
vessels on the basis of the Convention’s provisions on the contiguous zone would not necessarily
extend to its actions occurring in the rest of the exclusive economic zone, invalidation of
justifications on the basis of those provisions would, a fortiori, have negative implications for its
actions occurring further away from the baseline in the exclusive economic zone. This is

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because, as traditionally, the law of the sea generally tolerates greater exercises of authority
closer to the baseline. This discussion will also illuminate my later examination of freedom of
navigation. And it is broadly relevant to the Tribunal’s findings on the compatibility of Guinea’s
laws with the Convention, including its conclusions about hot pursuit. Therefore, I will
somewhat fully discuss the Convention’s provisions on the contiguous zone.

8. In essence, the underlying facts and issues call for the interpretation of article 33 of the
Convention, providing for the following species of authority for the protection of coastal State
interests (protective jurisdiction):

Article 33
Contiguous zone

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the
coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary

laws and regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed
within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines
from which the breadth of the territorial sea is measured.

The main issues may be phrased as follows: First, whether the only permitted exercise of
authority under article 33 is that of acts of control within the zone related to conduct occurring
on the territory or in the territorial sea, as opposed to prescriptive or enforcement jurisdiction.
Secondly, even if control is all that is permitted, whether under article 33 Guinea was at liberty to
and did properly prescribe measures for such control concerning infringement of its customs and
related laws occurring in the contiguous zone and outside of its territorial sea. Thirdly, did
article 33 authorize Guinea’s punishment of infringement of such laws committed in the
contiguous zone and outside of the territorial sea? At one point, the Respondent identified a
further issue, suggesting that violation of its above-mentioned laws in the contiguous zone
justifies the actions it took as long as the Saiga remained in its exclusive economic zone, because
further violations of customs laws had to be expected (Respondent’s Rejoinder (hereafter “RJ”),
p. 100). However, the Respondent later abandoned this line.

9. The first issue is whether, in connection with its endeavours to prevent and punish
infringements of the four types of laws specified in article 33, a coastal State’s authority is
limited to the exercise of “control,” as opposed to the jurisdictional exercises of prescription and
enforcement. Control evidently is not coincident with generalized and plenary sovereign
activity. Furthermore, it has been argued that such control semantically is more limited than
jurisdiction. Even so, it has been suggested that the exercise of control could encompass acts of
physical coercion in the contiguous zone by way of preventive or punitive measures relating to
conduct which is about to take place or has taken place in the territory or territorial sea.3 This
3
Shearer, 35 I.C.L.Q. (1986) (hereafter “Shearer”), pp. 329-330.

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suggestion has some limitations, since “control” generally connotes the right and power to
command, decide, rule or judge; the act of exercising controlling power, and the continuous
exercise of authority over a political unit. In a legal setting, the word means “[p]ower or
authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee. The
ability to exercise a restraining or directing influence over something ...”4. On the other hand,
“jurisdiction” generally connotes: the right and power to command, decide, rule or judge. In a
legal setting, “jurisdiction” is generally considered to have a more weighty connotation, in its
more common usage in context of the nature, source of authority and scope of judicial power or
its frequent international law usage as connoting prescriptive or enforcement authority.
Evidently, the ordinary meaning of article 33 is not quite clear or plain.

10. A contextual review provides some support for the contention that use of the word
“control” indicates that the authority provided in article 33 is relatively limited. Geographically
and juridically, the contiguous zone is part of the exclusive economic zone which, according to
article 55, is “an area beyond and adjacent to the territorial sea”. As will be seen in paragraphs
38-40, the coastal State’s authority over the exclusive economic zone relates mainly to natural
resources and includes: a specific species of limited “sovereign rights;” “jurisdiction”
encompassing three specified exclusive rights of authority, responsibility or dominion, and other
specific “rights and duties”. No broad and generalized authority is provided. This might be
compared to the powers generally attributed by article 2 over the whole sphere of the territorial
sea. It categorically provides, without qualification, that “[t]he sovereignty of a coastal State
extends, beyond its land territory and internal waters ... to an adjacent belt of sea, described as
the territorial sea.” This is supplemented by article 21, which also categorically authorizes the
coastal State, in that sea, to “adopt laws and regulations” in respect of a large number of matters,
including one set which is identical to the list in article 33.

11. Two other contextual provisions are articles 94 and 303. Paragraph 1 of the first states
that the duties of flag States are “effectively [to] exercise … jurisdiction and control in
administrative, technical and social matters ... ”. Paragraph 2 provides that every State shall
maintain a register of ships and “assume jurisdiction under its internal law” in respect of the
above-mentioned matters. Therein, control has a limited administrative connotation. Next,
article 303 provides that in order to control traffic in archaeological and historical objects found
at sea, “the coastal State may, in applying article 33, presume that their removal from the seabed
in the [contiguous zone] without its approval would result in an infringement within its territory
or territorial sea of the laws and regulations referred to in that article.” Evidently, by itself,
article 33 does not authorize control in respect of such traffic taking place within the contiguous
zone. Although the scope of this last instance is restricted, overall the foregoing contextual
survey rather suggests that article 33 control is of a limited nature.5

12. Nevertheless, in view of lingering ambiguity, recourse is now made to supplementary

means of interpretation. The direct predecessor of article 33 is article 24 of the 1958 Convention
on the Territorial Sea and the Contiguous Zone, the language of which was reiterated in the

4
Black’s Law Dictionary (6th ed., J. Nolan and J. Nolan-Haley, co-editors, 1990), p. 329.
5
UNCLOS III rejected proposals to accord the coastal State sovereign rights over archaeological and historical
objects and to extend jurisdiction out to 200 miles. Virginia Commentary, V, pp. 158-162.

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language of article 33 of the 1982 Convention.6 According to the available preparatory work, the
draft of that long-standing provision survived several attempts during the Third United Nations
Conference on the Law of the Sea (hereafter “UNCLOS III”) to have it deleted. It also survived
at least one proposal for the insertion of a clause that the establishment of a contiguous zone by a
coastal State did not “affect the rights and jurisdiction of [a coastal] State in its exclusive
economic zone and its continental shelf, nor ... the establishment of security zones.”7

13. Since the adoption of the 1958 Convention, the number of the prior domestic,
conventional and customary laws on protective jurisdiction, applied in zones analogous to the
contiguous zone for over some 200 years, have radically diminished. Their relevance now is
marginal, except insofar as they help to illuminate the meaning of the 1958 and 1982
codifications. These laws often sanctioned various exercises of protective jurisdiction which go
beyond the four circumstances listed in the codifications. Nevertheless, the older laws seem to
have presupposed a generally accepted underlying concept which I believe still obtains under
article 33 – that what we now call control in the contiguous zone is permitted to the extent that
the coastal State acts reasonably and necessarily and the control is exercised in those four
circumstances in order to benefit state territory.8 I therefore do not entertain any doubt that
permissible exercises of control under article 33 include those for taking such actions within the
contiguous zone as inspections, verifications, instructions9 and warnings, all with the purpose of
subserving laws and restraining their possible violation in territorial areas.

14. Turning to the second issue, it ineluctably follows that even if control is the only type of
action which might be taken against a foreign vessel, the power to prescribe such exercises of
control cannot be categorically deemed to be excluded. Control can be undertaken de facto or
pursuant to prescription for the prevention of conduct occurring or due or intended to occur in
the contiguous zone which is likely to infringe the coastal State’s laws within its territorial areas,
including internal waters or the territorial sea. However, according to the ordinary meaning of
its words, article 33 does not authorize the prescription of customs and the specified other types
of laws and regulations for conduct occurring inside the contiguous zone itself and not due or
intended to occur in the aforementioned territorial areas,10 as with the arrest of the Saiga and its
cargo and the trial and conviction of the Master. This is borne out by article 111, which
authorizes hot pursuit in relation to the “violations … of the laws and regulations of the coastal

6
Article 24 of the 1958 Convention differs from article 33 only: in stating that the zone’s maximum limit is
12 miles; in containing a provision on delimitation (located elsewhere in the 1982 Convention), and in providing
that the contiguous zone is part of the high seas. These differences do not have any real bearing on the question
under examination.
7
See Virginia Commentary, II (S. Nandan and S. Rosenne, eds., 1993), pp. 269-273.
8
See Church v. Hubbart 6 U.S. (2 Cranch) (1804), p. 187; P. Jessup, The Law of Territorial Waters and Maritime
Jurisdiction (1927), pp. 75-96 and 211-238; Jessup in 31 A.J.I.L. (1937), pp. 101-104; C. Columbus, The
International Law of the Sea (1967), pp. 131-146 (exhibiting a more guarded attitude towards such exercise of
jurisdiction); L. Oppenheim, International Law (4th ed., A. McNair, 1928) I, paragraph 190(i)(ii); (7th ed.,
H. Lauterpacht, 1957) (hereafter “Oppenheim 1957”) I, paragraph 190(i)(ii)); P. Rao, The New Law of Maritime
Zones (1983), pp. 301-331.
9
In his 1956 Report on the Regime of the High Seas and Regime of the Territorial Sea, the I.L.C. Special
Rapporteur refers to “instructions.” He notes that “[I]f a different point of view were accepted and a foreign vessel
may be boarded by a vessel of the coastal State, the resulting situation would be incompatible with the relations
prevailing between powers at peace with each other.” I.L.C. Y.B. 1956 II, p. 34, paragraph 6.
10
See Shearer, p. 330.

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State applicable” to the territorial sea, the exclusive economic zone or the continental shelf. The
wording makes it clear that, in each of those situations, full jurisdiction is authorized. However,
hot pursuit in relation to the contiguous zone is authorized only if there has been a violation of
the “rights for the protection of which the zone was established”, viz. the limited protection,
within the contiguous zone, of the territorial areas from violation of customs, fiscal, immigration
and sanitary laws. I believe that this analysis enhances the Judgment’s discussion of hot pursuit.

15. Turning to the third issue identified in paragraph 8, the ordinary meaning of article 33 is
that the power of the coastal State to punish infringement of the stated laws (committed outside
territorial areas or within the contiguous zone) is not generally permissible in relation to vessels
merely located in the contiguous zone and not proven to have some relevant connection with
territorial areas. Again, a contextual analysis is useful. Notwithstanding the broad ambit of the
authority vested in coastal States over territorial areas by articles 2 and 21, article 27,
paragraph 1, states that in the territorial sea the coastal State can exercise criminal jurisdiction in
or over a foreign ship exercising innocent passage only in precisely stated situations, mostly
where there are direct effects on the coastal State. More pertinently, according to paragraph 5,
criminal jurisdiction cannot be exercised in or over such ships during such passage for offenses
committed before the ship entered the territorial sea. It might be argued that it could not have
been intended that article 33 provides more authority relating to the identical conduct in respect
of which article 27 requires restraint.

16. The limitations of article 33 are also evident from a comparison of the requirements for
hot pursuit in relation to the territorial sea, the contiguous zone, the exclusive economic zone and
the continental shelf, summarized in paragraph 14. However, in the light of the pre-1958 law
and the doctrine of objective or effects jurisdiction, I believe that it is tenable that conduct
occurring in the contiguous zone which is part of the jurisdictional facts or actus reus of conduct
intended or due to occur or actually occurring in the territorial sea or other territorial areas can be
punished as long as the vessel is apprehended in the course of the exercise of some legitimate
means of control as mentioned earlier. Nevertheless, in relation to all three issues, my view is
that, under article 33, the coastal State must exercise whatever authority it possesses within the
contiguous zone only in the course of contemporaneous apprehension or after a successful hot
pursuit properly commenced in the contiguous zone. On the facts of this case, the Respondent
appears to have well exceeded this limited scope of its authority.

FREEDOM OF NAVIGATION

The Convention’s Provisions

17. As has been seen, the Convention exhibits a somewhat discouraging attitude towards
broad exercises of coastal State authority in the contiguous zone. Reciprocally, the Convention
possibly here exhibits a tolerant approach to the rights of flag States (and other States) to
navigation in the contiguous zone. I now address that subject in the framework of the broader
regime of the exclusive economic zone, recalling the Applicant’s assertion that its freedom of
navigation was violated by the Respondent. The Tribunal has not found it necessary to elaborate
on this issue, possibly since it has held that the customs and related laws of the Respondent
provide no legal basis for the Saiga’s arrest in relation to its activities in the exclusive economic

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zone and for Guinea’s subsequent actions. In paragraph 176 of the Judgment, the Tribunal
formally declares that the Respondent acted wrongfully and violated the rights of the Applicant
“in arresting the Saiga in the circumstances of this case”, holding that that declaration constitutes
adequate reparation. In paragraphs (7) and (8) of the operative provisions of the Judgment, the
Tribunal:

(7) … Decides that Guinea violated the rights of Saint Vincent and the Grenadines
under the Convention in arresting the Saiga, and in detaining the Saiga and members of
its crew, in prosecuting and convicting its Master and in seizing the Saiga and
confiscating its cargo; …

(8) … Decides that in arresting the Saiga Guinea acted in contravention of the
provisions of the Convention on the exercise of the right of hot pursuit and thereby
violated the rights of Saint Vincent and the Grenadines; …

Since the first and chief right in dispute between the parties relates to the freedom of navigation,
it is evident that the Judgment reaffirms freedom of navigation. The Tribunal’s narrow findings
about the legality of the Respondent’s actions and their compatibility with the Convention also
logically presuppose a determination that the flag State’s freedom of navigation was violated.
However, since the Tribunal’s reaffirmation and determination are somewhat muted, and for the
reasons given in paragraph 1 of this Opinion, it is necessary for me somewhat fully to analyse the
nature of the freedom of navigation generally and in the context of the exclusive economic zone.

18. In the Convention, freedoms, entitlements or rights relating to navigation are available,
under different names, in the high seas, archipelagic waters, straits and the territorial sea. The
details, as they are, of such freedom of navigation are provided for in Part VII (on the high seas).
Nevertheless, the requirement of that freedom is found in Part V (on the zone), by incorporation by
reference in article 58:

Article 58
Rights and duties of other States in the exclusive economic zone

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy,
subject to the relevant provisions of this Convention, the freedoms referred to in article
87 of navigation and overflight and of the laying of submarine cables and pipelines, and
other internationally lawful uses of the sea related to these freedoms, such as those
associated with the operation of ships, aircraft and submarine cables and pipelines, and
compatible with the other provisions of this Convention.
...
3. In exercising their rights and performing their duties under this Convention in the
exclusive economic zone, States shall have due regard to the rights and duties of the
coastal State and shall comply with the laws and regulations adopted by the coastal State
in accordance with the provisions of this Convention and other rules of international law
in so far as they are not incompatible with this Part.

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Indeed, as article 58, paragraph 1, intimates, the freedom of navigation, properly so called, is
provided for only in article 87 of Part VII (on the high seas):

Article 87
Freedom of the high seas

1. The high seas are open to all States, whether coastal or land-locked. Freedom of
the high seas is exercised under the conditions laid down by this Convention and by other
rules of international law. It comprises, inter alia, both for coastal and land-locked
States:

(a) freedom of navigation;

(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted
under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of
other States in their exercise of the freedom of the high seas, and also with due regard for
the rights under this Convention with respect to activities in the Area.

19. As provided in article 87, paragraph 1, freedom of the high seas itself comprises, inter alia,
the freedom of navigation. However, freedom of the high seas is not defined. Article 87 simply
lists six components or incidents of the freedom. Taking, for expositional convenience, a
historical approach, I should draw attention to the partial definition given in the Lotus case
(Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 25), that freedom of the high seas is simply
the absence of any territorial sovereignty upon the high seas in virtue of which, as the law
apparently stood in 1927, no State should purport to exercise any kind of jurisdiction over
foreign vessels. However, that source furnishes inadequate understanding of the nature and
function of these two freedoms. I therefore will shortly explore the provisions of Part V (on the
exclusive economic zone) as the broader context of article 87. However, for convenience, I shall
first discuss historical and broadly juridical aspects of the basis of the freedom of the high seas, a
subject which requires clarification, especially since it closely touches on some of the arguments
of the parties in this case regarding the meaning and scope of navigation.

The Bases of Freedom of the High Seas

Introduction

20. This case has brought into sharp relief the lack of clarity about the essential nature of the
closely-related freedoms of navigation and the high seas. Yet it highlights the fact that such
matters are of critical importance in solving practical problems under the Convention. It will be
recalled that article 58, paragraph 1, states that, in addition to the freedoms, including of
navigation, States enjoy “internationally lawful uses ... associated with the operation of ships”,

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which must be “related to,” inter alia, the freedom of navigation. In this case, the question has
been canvassed whether that freedom or those uses specifically include the provision and receipt
by each State or its vessels of ship bunkering supplies. The Applicant claims that offshore
bunkering “has a long history” (Applicant’s Reply (hereafter “R”), paragraph 129). However, it
did not adduce substantial evidence of this. Neither does the literature supplied or referred to in
its pleadings, which mainly covers bunkering in ports or at docks, roadsteads and the like and
from moored barges or pipelines. Nor is it clear what specific actions have been taken by the
newly-formed International Bunkering Industry Association to provide juridical and other
studies, e.g. regarding the legitimacy of offshore bunkering of the type involved in this case.11
The brief report on the industry provided by the Applicant and prepared by MRC Business
Information Group Ltd. does suggest that the growing industry is of some magnitude. On the
other hand, the Respondent exhibited no authority for its asserted distinction between
transportation or unimpeded movement, on the one hand,12 which is allegedly embraced by the
freedom, and trade, on the other hand, which is said not to be so embraced unless the trade
occurs entirely on board one vessel. Even assuming that only transportation is encompassed by
the freedom, neither has the Respondent furnished support for its contention that the facts of this
case involve only trade. The Respondent has not sought to substantiate its contention that
obtaining bunkers is ancillary to navigation, and therefore permissible, while selling them is not,
or its further assertion that there is a distinction between supplying bunkers to transiting vessels
but not to fishing vessels (CM, pp. 94-101; RJ, pp. 88-91). In the absence of clarity in the
Convention’s text on even the basic nature of the two freedoms, much less the issues mentioned
above, I have found it necessary to discuss the broad background of their basis as a
supplementary means of interpretation.

Freedom of communication

21. The Respondent categorizes freedom of navigation as a communication freedom of a

limited nature from the ambit of which is excluded offshore bunkering (ITLOS/PV.99/14, p. 25
(15 March); cf. ITLOS/PV.99/16, p. 31 (18 March)). However, again it has not supplied
supportive evidentiary materials. Nevertheless, as article 87 shows, currently13 the more widely

11
See C. Fischer and J. Lux, Bunkers: An Analysis of the Practical, Technical and Legal Issues (1994), passim, esp.
pp. 81-117 and 175-84; W. Ewart, Bunkers – A Guide to the Ship Operator (1982). In these books, which largely
deal with technical matters, the discussion of legal issues tends to be limited to sales and other basic contractual
questions. See also ESSO, International Bunkers Guide (1953).
12
Applicant submitted that bunkering often occurs during the movement of both vessels necessitated by the
objective of keeping the supply hose taut (ITLOS/PV.99/16, p. 30 (18 March)).
13
Among older notions about the basis of the institution of freedom of the high seas have been that what cannot be
occupied should be shared, that there should be universal access to inexhaustible resources and that the difficulty of
demarcating maritime frontiers in distant waters justifies use in common. More recently, it has been suggested that
the institution was a reaction against far-reaching national claims to ocean spaces at the beginning of the 17th
century. The idea has also been advanced that since the institution commenced to flourish during the era of overseas
colonial expansion by Western countries, it was a component of such expansion and colonization. Lapidoth,
6 J.M.L. & C. (1974-1975) (hereafter “Lapidoth 1974-75”), pp. 259-271; J. Verzijl, International Law in Historical
Perspective (1971), IV, 30; N. Rembe, Africa and the International Law of the Sea – A Study of the Contribution of
the African States to the United Nations Conference on the Law of the Sea (1980) (hereafter “Rembe”), pp. 165-167.

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accepted, yet somewhat unclear14, notion about the basis of the institution of freedom of
navigation is that it is subsumed under the freedom of the high seas, which is itself based and
dependent on a broader freedom of maritime communication and intercourse, given the fact that
the sea is essentially an indispensable global highway. There was some erosion of both freedoms
of the high seas and of navigation prior to the 1958 Geneva Convention. In part, this was due to
the development of protective jurisdiction in the contiguous zone. In part, it was apparently
attributed to assertions of extended coastal State jurisdiction over the mineral resources of the
“submarine areas”. Thus, a leading jurist suggested in 1950 that the freedom of the high seas
was not immutable and was losing its paramountcy.15 Nevertheless, the relationship between
these two freedoms, on the one hand, and freedom of communication, on the other, was
reinforced in the fourth preambular paragraph of the Convention, in which international
communication leads the list of five broad components of the “legal order for the seas and
oceans”:

Recognizing the desirability of establishing through this Convention, with due regard for
the sovereignty of all States, a legal order for the seas and oceans which [1] will facilitate
international communication, and [2] will promote the peaceful uses of the seas and
oceans, [3] the equitable and efficient utilization of their resources, [4] the conservation
of their living resources, [5] and the study, protection and preservation of the marine
environment.

22. Notwithstanding the preamble, the Convention strengthens the institution of the continental
shelf and established such new regimes as the exclusive economic zone and the Area. Recalling
the 1950 suggestion and the uncertain evidence about the nature and basis of the freedoms, I
must therefore now discuss another set of alleged bases of the freedoms of the high seas and of
navigation.

The Global Economy

23. Those bases relate to the functioning of the global economy, e.g. the propositions that
freedom of the high seas and related freedoms subserve the needs of international trade and
commerce and that they have been, and remain, an indispensable factor in the development of
the world economy and international commerce. Thus, “absolute freedom of navigation upon
the seas, outside territorial waters ... except as … may be closed in whole or in part by
international action for the enforcement of international covenants” was the second of President
Woodrow Wilson’s influential Fourteen Points of January 1918. Point II was organically related
to Points III, IV and XIV, respectively calling for the removal of economic barriers and
instituting equal trade controls among peacekeeping nations; guarantees by such nations for the
reduction of arms to “the lowest feasible point,” and the establishment of an association of
nations mutually to guarantee political independence and territorial integrity of all States.
Despite the disavowal of the Fourteen Points by several major States, their essence entered the
global normative order. Points II and III are reflected in paragraph (e) of article 23 of the

14
It has been held that a concrete manifestation of that latter freedom is the obligation of a coastal State, identified
by the International Court of Justice as being “for the benefit of shipping in general,” to notify approaching warships
of the existence of a minefield (Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 4 at 22).
15
Lapidoth 1974-75, p. 271; Oppenheim 1957, paragraph 259; Lauterpacht in 27 B.Y.I.L. (1950), pp. 376-414.

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Covenant of the League of Nations (Part I of the Versailles Peace Treaty of 1919), in which the
Members of the League agreed to “make provision to secure and maintain freedom of
communications and of transit and equitable treatment for the commerce of all Members of the
League ...”.16

24. Article 23(e) was the catalyst for efforts to strengthen the international economic order on a
footing of “freedom of communications and of transit and equitable treatment” of commerce.
This was done through provisions in the Versailles Treaty for non-discrimination by the
vanquished nations both in general commerce and international navigation over the major
European rivers and the Kiel Canal in Germany. Commercial and navigational equality were
also pursued in related instruments concerning the Mandates System and in various technical
studies and conferences. A notable group of Conventions explicitly designed to further the goals
of article 23(e) were the Convention on the Regime of Navigable Waterways of International
Concern (the 1921 Barcelona Convention); the 1923 Convention on the International Regime of
Railways; the 1923 Convention on Maritime Ports, and a number of conventions commencing in
1921 on specific European waterways of international concern.17

25. The S.S. “Wimbledon” and Oscar Chinn judgments of the Permanent Court of
International Justice reflected that these early provisions requiring non-discrimination in
international navigation soon contributed to an established juridical concept.18 In the first of
those judgments, the Court applied article 380 of the Versailles Treaty, providing that the Kiel
Canal “shall be maintained free and open to the vessels ... of all nations at peace with Germany
on terms of entire equality.” In response to Germany’s refusal to permit a vessel carrying
armaments into the Canal, the Court held that, under article 380, the Canal had “ceased to be an
internal and national navigable waterway” and had become “an international waterway intended
to provide ... access ... for the benefit of all nations of the world” (S.S. “Wimbledon”, Judgments,
1923, P.C.I.J., Series A, No. 1, p. 22). On the other hand, in their joint dissent, Judges Anzillotti
and Huber emphasized the freedom of communication, noting that the Barcelona conventions
were “concluded for the purpose of giving effect to [that] principle … which was enunciated in
Article 23 of the Covenant ...” (1923, P.C.I.J., Series A, No. 1, pp. 35-36).

26. In 1934, in the Oscar Chinn case, the Permanent Court construed the 1919 Convention on
St. Germain en Laye, another instrument associated with the conclusion of World War I. It held
that the freedom of fluvial navigation, guaranteed by the Convention, though different from
freedom of commerce (which was also guaranteed) “implied” freedom of commerce of the

16
Oppenheim 1957, I, p. 593; R. Lapidoth-Eschelbacher, Freedom of Navigation with Special Reference to
International Waterways in the Middle East (1975), p. 17; United Nations, DOALOS, The Law of the Sea –
Navigation on the High Seas – Legislative History of Part VII, Section 1 (Articles 87, 89, 90-94, 96-98) of the
United Nations Convention on the Law of the Sea (1989), pp. 47-48; C. Davidson, The Freedom of the High Seas
(1918), pp. 76-78; P. Crecraft, Freedom of the Seas (1935), p. xiii (introduction by E. Borchard), pp. 200-213; H.
Temperley, History of the Peace Conference of Paris (1920), Vol. 3, pp. 111 and 121-122.
17
Laing in 14 Wisc. Int’l. L. J. (1996), pp. 257-261 and 276-280.
18
Liberal access to international waterways reaches back to provisions in the Act of the 1815 Congress of Vienna
and various subsequent multilateral and bilateral instruments in Europe, Africa and North America. See id.,
pp. 276-284. Furthermore, the avowed purpose of numerous bilateral treaties of Friendship, Commerce and
Navigation and other treaties establishing commercial and economic modi vivendi for many years has been to
guarantee non-discrimination or freedoms, inter alia, of navigation.

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“business side” of enterprises concerned with navigation but did not “entail” and “presuppose”
all aspects of freedom of commerce. Thus, discrimination between national and foreign
companies concerning permissible transportation rates was not prohibited (Oscar Chinn case,
Judgment, 1934, P.C.I.J., Series A/B, No. 63, pp. 78-87). While some of the Judges objected to
what they considered to be the Court’s fine distinction (see Separate Opinions by Judges
Anzilotti and Van Eysinga, (1934, P.C.I.J., Series A/B, No. 63, pp. 107-112 and 131-145), the
judgment nevertheless stands for a reaffirmation of the vitality of freedom of navigation and its
close relationship to broader economic principles and institutions.19

A Fundamental Principle

27. Whether the basis of freedom of the high seas is the institution of maritime communication,
or is an integral aspect of the global economy, the freedom has been described as “an obligatory
binding norm;” a “fundamental principle, which has also had great influence on other branches
of international law, particularly space law and the regime of the Antarctic Treaty,” and “a
fundamental principle of international law as a whole”. The subsumed freedom of navigation has
also been described as a peremptory norm of the law of nations.20 In the Corfu Channel case,
Judge Alvarez took a similar approach, noting that:

The Atlantic Charter of 1941 laid down the freedom of the seas and oceans as a
fundamental principle. On January 1st, 1942, the united nations signed a Declaration in
which they accepted the principle. Article 3 of the Charter of the United Nations
[organization] alludes to that Declaration. Public opinion, also, is favourable to the
freedom of the seas; it may therefore be said to form part of the new international law.
(Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 46)

He also suggested that passage through territorial seas and straits was a right possessed
by merchant ships “discharging a peaceful mission and ... contributing to the development of
good relations between peoples” (ibid.).

28. The Atlantic Charter, to which Judge Alvarez refers, was a joint declaration by the
President of the United States of America and the Prime Minister of Great Britain in which they
stated the common principles on which they based “their hopes for a better future of the world”
upon the conclusion of World War II. This statement of peace aims, incorporated by reference in
the above-mentioned 1942 treaty-Declaration, was adopted by all of the Allies of those States
between 1942 and 1945. It was the foundation of comprehensive structures for global order
painstakingly assembled at conferences and in bilateral and multilateral treaties establishing the
current permanent regimes for global cooperation.21 These edifices were explicitly designed to

19
In my view, Oscar Chinn and other precedents do not stand for the proposition that there is some rigid distinction
in international law between transportation and navigation, on the one hand, and such commercial activities as may
be carried on by, from or within a vessel. C.f. CM, paras. 98-100, and RJ, paras. 88-91.
20
Oppenheim 1992, I, paragraph 280; Lapidoth, 10 Israel L. R. (1975), p. 456.
21
In the spheres of general world order and human rights (the United Nations), finance (Bretton Woods institutions),
civil aviation (Chicago Convention and the International Civil Aviation Organization), food and agriculture (Food
and Agriculture Organization), labour (pre-1941 International Labour Organization) and international trade (the
General Agreement on Tariffs and Trade, now succeeded by the World Trade Organization and its network of
treaties, other norms and related institutions). During the wartime period, and even thereafter, this was partly

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implement the Atlantic Charter. The very extensive archival record22 clarifies that, rightly or
wrongly, the Charter was universally considered to be legally binding. Since the war, until the
present day, it has been listed not as a declaration but as a treaty in force between the United
States and 47 of its wartime allies. Throughout, the Allies were very concerned with enshrining
economic liberalism and non-discrimination in the global order and completing the tasks which
had commenced at the conclusion of World War I.23 There are now vigorous efforts to
institutionalize these concepts in most branches of international economic relations.24 These
efforts have been accelerated following the onset of international depolarization.

29. The Seventh Point of the Atlantic Charter deals with the freedom of the seas. This Point is
dependent on the Sixth Point. These Points provide for the so-called freedoms from fear and
want.25 The freedoms from fear (security and non-interference, in today’s language) and from
want were, in turn, related to the Fourth Point, that “they will endeavour ... to further the
enjoyment by all States ... of access, on equal terms, to the trade and to the raw materials of the
world which are needed for their economic prosperity”. This latter provision is the foundation
stone of the current global economic system. These provisions and the archival records reveal
the view of the United States of America and its main wartime allies that all eight Points of the
Atlantic Charter were integrally related.

30. Thus, continuing the patterns of organic interrelationships of the earlier Fourteen Points,
freedom of the high seas has been, and remains, inseparable, inter alia, from freedom from want
and from economic liberalism and non-discrimination. These principles and goals and their
interrelatedness have been reaffirmed in preambular paragraph 7 of the Convention, referring to

the strengthening of peace, security, cooperation and friendly relations among all nations
in conformity with the principles of justice and equal rights and [the] ... promot[ion of]
the economic and social advancement of all peoples of the world, in accordance with the
Purposes and Principles of the United Nations as set forth in the Charter.

It is also apparent that freedom of the high seas is an institution well established in the
global order with deep and substantial roots and various siblings. It is closely related to the
freedom of communication. One of its most important components is the freedom of navigation.
Throughout, there is an increasing emphasis on non-discrimination and equality of access for all
States, including those that are land-locked or otherwise disadvantaged by geography. At the

stimulated by repeated and solemn invocation of the Atlantic Charter worldwide in national constitutions,
multilateral and bilateral treaties, resolutions of inter-governmental conferences, diplomatic communications, and
other pronouncements by officials, popular elites, journalists and other commentators.
22
Especially the records of the U.S. Dept. of State’s Special Committee on Post-War Policy and its numerous sub-
committees at the U.S. Archives. See generally H. Notter, Postwar Foreign Policy Preparation (1949); R. Russell
and J. Muther, A History of the United Nations Charter (1958); Laing, 26 Willamette L.R. (1989), pp. 124-140.
23
Id., pp. 113-169; Laing in 22 Cal. West.J.I.L. (1991-92), pp. 209 and 250-308; Laing in 14 Wisc. I.L.J. (1996),
pp. 261-264; Treaties in Force for the United States of America on January 1, 1997 (U.S. Department of State,
1997), pp. 1, 324.
24
See Laing in 14 Wisc. I.L.J. (1996), pp. 246-348.
25
This was that after the final destruction of the Nazi tyranny, the declarants hoped to see established a peace which
would afford to all nations the means of dwelling in safety within their own boundaries, and which would afford
assurance that all the men in all the lands might live out their lives in freedom from fear and want ant that such a
peace “should enable all men to traverse the high seas and oceans without hindrance”.

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same time, all States, rich and poor, coastal and non-coastal, must be afforded opportunities to
benefit economically from the bounty of the oceans.26

31. Therefore, from the perspective of international economic law and history, prima facie,
freedom of navigation is one of the fundamental principles of general and economic global order,
related to such other fundamental principles as equality of access and security and non-
interference (freedom from fear).

Incidents of Freedom of Navigation Under the 1982 Convention

Incidents of freedom of the high seas

32. The incidents of freedom of the high seas under the Convention must now be identified.
According to the non-exhaustive list27 in article 87, paragraph 1 (set out in the preceding
section), these include the freedoms of navigation, overflight and of fishing. It also includes the
freedoms to construct artificial islands and other installations, to lay submarine cables and
pipelines, and of scientific research in accordance with the provisions on the continental shelf,
which may extend below the water column well beyond the 200-mile exclusive economic zone.
Details concerning the first of these last three freedoms are actually contained in Part V,
regulating the zone. The latter two are regulated by Parts VI and XIII, on the continental shelf
and on marine scientific research. According to paragraph 1, with these freedoms the high seas
are “open to all States, whether coastal or land-locked.” However, according to paragraph 2, in
exercising their rights and performing their duties, States shall have due regard to the interests of
other States in their exercise of the freedom of the high seas. This standard of “due regard” is
less ambulatory and open-textured than is the standard of “reasonable regard” in the counterpart
article 2 of the High Seas Convention.

Incidents of freedom of navigation

33. As I have shown, the freedom of navigation is one of the high seas freedoms. By
article 90, it includes the “right of navigation” of every State “to sail ships flying its flag on the
high seas.” From the context, it probably includes or is closely related to obligations and duties
inter alia falling under articles 91, 94 and 97.28

26
See Part X of the Convention on the obligatory, though not self-executing, right of access of land-locked States to
and from the sea and freedom of transit. Cf. article 3 of the 1958 Convention on the High Seas, providing for non-
obligatory access. For a post-1958 rationale for the free access basis of freedom of the high seas, see M. McDougal
and W. Burke, The Public Order of the Oceans (1962) (hereafter “McDougal and Burke”), pp. 748-750. The
Convention’s notion of coequal sharing in ocean spaces, as expressed in the much-discussed institution of the
common heritage of mankind in the Area, is therefore an aspect of a broader phenomenon of some vintage.
27
Respondent however argues that since it is not mentioned in article 87, bunkering cannot be a freedom of
navigation (ITLOS/PV.99/14, p. 25 (15 March)).
28
According to article 91, it is an obligatory State function to fix the conditions for the grant to and exercise of
nationality of ships. Article 94 states a variety of flag State duties. These include the exercise of jurisdiction and
control in administrative, technical, social, safety and regulatory matters over ships flying the flag. Under article 97,
paragraph 1, the flag State has penal and disciplinary responsibility in the event of a collision of any of its vessels.
And under article 97, paragraph 2, the flag State has general discipline over masters and others holding certificates
of competence or licenses.

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34. Nevertheless, the nature of the incidents of freedom of navigation is still unclear. The final
sub-section of the preceding section implies that the incidents of freedom of navigation (as an
aspect of the freedom of the high seas) include navigational activities associated with equal
economic access and opportunity to benefit economically, including through trade. It is
therefore tempting provisionally to state that the coastal State and flag State have co-equal rights
of access, at least in discrete spheres, in the exclusive economic zone. However, such a
conclusion cannot be made on the basis of the data examined so far. Therefore, I will devote
much of the remainder of this Opinion to exploring whether the provisions on the exclusive
economic zone institution and other provisions of the Convention provide more illumination.

Impact of the Convention’s Provisions establishing the EEZ Institution

Introduction

35. The question must now be examined whether the new institution of the exclusive economic
zone is so comprehensive and preemptive that the freedom of navigation has been eroded or
subordinated by the respective provisions of Part V of the text of the Convention. I will then
briefly explore whether trends in claims by various States to or in respect of exclusive economic
zones have had an impact on this question.

Status under the Convention of the exclusive economic zones

36. During UNCLOS III and for some time after the adoption of the Convention in 1982, there
was considerable discussion about the status of exclusive economic zones.29 The matter has
perhaps been conclusively resolved by article 55, categorizing the exclusive economic zone as
subject to “the specific legal regime established in this Part [V]”. In an influential arbitral
decision relevant to this case, this regime has been determined not to be one of sovereignty
(Guinea/Guinea Bissau Maritime Delimitation Case, 77 ILR (1985), paragraph 124). In
interpreting the expression “exclusive economic zone” or the language of article 55 and other
articles, several synonyms, paraphrases and explanations have been suggested. The first of these
was devised for the former 12-mile maritime zone of exclusive fisheries jurisdiction for each
coastal State carved out of the high seas by State practice. This zone was actually in derogation
of the provisions of the 1958 High Seas Convention. Yet it was ambiguously referred to as a
“tertium genus between the territorial sea and the high seas” in the Fisheries Jurisdiction cases
(I.C.J. Reports 1974, p. 3, at 23-24, paragraphs 52 and 54, and p. 175, at 191-192, paragraphs 44
and 46). However, reliance on the precise language of article 55 is the correct and more helpful
approach to the task of ascertaining ordinary meaning, though the phrase “sui generis,” which is
sometimes used, might be relatively innocuous. Precisely determining status is partly dependent
upon identification of the incidents of the status, a matter which is postponed until the next sub-
section.30
29
In particular there was discussion of whether the nature of such zones is essentially territorial, thus having a close
resemblance to the territorial sea and analogous maritime areas proximate to coastal States; whether they are more
akin to the high seas, the geographical area into which such waters fell prior to 1982; or whether they are hybrids,
with attributes of territorial seas and high seas.
30
However, in my view, it is unhelpful to define exclusive economic zone status in terms of national jurisdiction or
resemblance to the high seas. “[A]ll the rules relating to navigation and communication on the high seas are
applicable beyond the outer limits of the territorial sea, but other rights formerly included within the concept of the

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37. Starting with article 56 (stating the rights, jurisdiction and duties of the coastal State in the
exclusive economic zone), the bulk of the text of Part V of the Convention deals with the subject
of natural resources and related controls. Furthermore, the text of article 58 stresses that other
States, whether coastal or land-locked, have simultaneous rights and duties in the exclusive
economic zone. Such States also have certain jurisdiction in that zone. This appears from the
text of many portions of Part VII and the context of article 87, which are incorporated by
reference in articles 58 and 87. The exclusive economic zone is therefore an area in which the
coastal State has concurrent, though not identical, rights, jurisdiction and duties with flag and
other States. It has been suggested that this concurrence is horizontal but I do not find the
suggestion helpful. I would only stress that the scope of authority of both groups of States is
evidently not identical. I should point out that coexistence of uses and authority seems to have
always characterized the various maritime zones. Regrettably, there has been a tendency to
assume that, despite the permeability of the oceanic water column and the diversity of maritime
spaces, rights and jurisdiction necessarily have to be exclusive.31 That this is the wrong approach
is emphasized by the “due regard” standard for the exercise of concurrent rights, duties and
jurisdiction set out in articles 58, paragraph 3, and 87, paragraph 2. The same language is used
in article 56, paragraph 2.32

Incidents under the Convention of exclusive economic zone status

38. There are several groups of incidents enjoyed by the coastal State. Firstly, according to
article 56, paragraph 1(a), there are the “sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources, whether living or non-living, of the
waters ...” (emphasis added), subject to certain rights of participation in exploitation by land-
locked and geographically disadvantaged States preserved or regulated by articles 69-72.
Secondly, the same paragraph provides for sovereign rights with regard to “other activities for
the economic exploitation and exploration ..., such as the production of energy from the water,
currents and winds”. The text clearly limits these activities to natural resources. Thirdly,
articles 56, paragraph 1(b), and 60 provide for exclusive rights and jurisdiction in two discrete
areas, viz. (i), rights of and with regard to the construction, operation and use of artificial islands,
installations and structures (for the purposes mentioned so far in this portion of this Opinion) and
(ii), jurisdiction over such artificial islands, installations and structures. Fourthly, article 56,
paragraph 1(b), affords jurisdiction with regard to (i) marine scientific research and (ii) the
protection and preservation of the marine environment. Fifthly, by article 58, paragraphs 1
and 2, along with all other States the coastal State enjoys freedom of navigation and such other
article 87 freedoms and other uses described in paragraph 33 of this Opinion. Sixthly, articles
56, paragraph 2, and 58, paragraph 3, provide for obligatory reciprocal due regard by coastal
States, on the one hand, and by other States, on the other hand, of each others’ rights and duties.
Seventhly, articles 61-68 authorize rights and powers of conservation, utilization and
management of living resources by coastal States with some collaboration by specified elements

freedom of the high seas, in particular those relating to natural resources, are abridged or abrogated entirely in the
[EEZ] ...,” Virginia Commentary, III (S. Nandan and S. Rosenne, eds., 1995), p. 70.
31
On concurrence see Allott, pp. 14-17; D. Attard, The Exclusive Economic Zone (1987) (hereafter “Attard”), p. 64.
32
In fact, since “freedom” is a broader species than “right,” freedom of navigation might logically be said to trump
some coastal State rights. See Oppenheim 1992, I, paragraph 342. However, I do not so propose.

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of the international community. Finally, by article 73, the coastal State may optionally enforce,
within parameters therein set forth, its laws and regulations related to exploration, exploitation,
conservation and management of living resources. The limitations to coastal State authority and
the concurrence or mutual tolerance of rights and jurisdiction of coastal and other States
appearing throughout is somewhat reaffirmed by article 73, paragraph 3, providing that
“penalties for violations of fisheries laws and regulations ... may not include imprisonment, in
the absence of agreements to the contrary by the States concerned, or any other form of corporal
punishment.”

39. Despite the use of the word “economic” in the title, there is no doubt that the essence of the
incidents of exclusive economic zone status is the control, exploration and exploitation of and
jurisdiction over natural resources and other related activities. At the same time, the framework
is broadly economic, the focus in many places being on proper and appropriate access by entitled
States in what is an economic, as well as natural, set of assets. In some cases, the nature of
access is particularized. Examples are articles 69 and 70, providing for “equitable” access of
land-locked and geographically disadvantaged States.

40. In the event that article 56, read in context, is nevertheless considered to be ambiguous,
these conclusions are borne out by the limited available preparatory work for the Convention.
They are also supported by such other available extrinsic evidence as scholarly opinion and the
history of claims to extended maritime jurisdiction outside of the territorial seas of 3 to 12 miles
that were commonplace prior to the early 1970s33. Therefore, prima facie, the Respondent’s acts
cannot be categorized as having been in implementation of these provisions.

33
(1) Preparatory work: Exclusivity or predominance of natural resources orientation of article 55 and related
articles: Virginia Commentary, II, pp. 519-520 (language of article 55, paragraph 1(a), evolved from sole exercise
by coastal State in decision-making authority to exclusion from use of fishing vessels by other States in EEZ);
Scovazzi in The Law of the Sea: What Lies Ahead? (T. Clinghan, Jr., ed., 1986) (hereafter “Scovazzi”), pp. 310 and
321-322; United Nations, DOALOS, The Law of the Sea – Exclusive Economic Zone – Legislative History of
Articles 56, 58 and 59 of the United Nations Convention on the Law of the Sea (1992) (hereafter “DOALOS EEZ”),
pp. 80-81 (rejection of proposal by 18 African States, not including Guinea, at UNCLOS III, 2nd session, to accord
to coastal State jurisdiction under article 56 to “[c]ontrol and regulation of customs and fiscal matters related to
economic activities in the zone.”; see also Virginia Commentary, II, p. 530, and U.N. Doc A.CONF.62/C.2/L.82
(26 Aug. 1974)); Virginia Commentary, II, p. 529 (rejection of El Salvador proposals at UNCLOS III, 2nd session,
to insert in article 56 reference to jurisdiction of coastal State over other economic uses of the waters); id., pp. 784-
795 (rejection of repeated proposals at UNCLOS III for flag State enforcement, under article 73, of violation of laws
and regulations; rejection of proposal at UNCLOS III of 18 African States, not including Guinea, regarding
exclusive coastal State legislative and enforcement power regarding drilling, scientific research, artificial islands and
other installations and fishing); Attard, p. 128 (one reason why, during UNCLOS, some States wished to retain
contiguous zone concept was to emphasize economic function of EEZ, was fear that elimination of the former would
lead to extension of existing contiguous zone rights into entire EEZ); see also Third United Nations Conference on
the Law of the Sea, Official Records, II, Summary Records of Meetings of the Second Committee, 1st- 41st Meetings
(20 June – 29 Aug. 1974) (summarizing the views of, inter alia, Austria, Italy, Honduras, Bahrein).
(2) Scholarly work: Exclusivity or predominance of natural resources orientation of article 55 and related articles:
Nelson in 22 I.C.L.Q. (1973), p. 682 (on earlier Latin-American patrimonial sea concept); Galindo Pohl in The
Exclusive Economic Zone – A Latin-American Perspective (F. Orrego Vicuña, ed., 1984) (hereafter “A Latin-
American Perspective”), p. 48. Functionalism of Part V provisions: F. Orrego Vicuña, The Exclusive Economic Zone
– Regime and Legal Nature Under International Law (hereafter “Orrego Vicuña”), pp. 261-262; Attard, p. 67 (EEZ
an experiment in functionalism); Scovazzi, pp. 321-322 (construing article 56, paragraph 1(a)’s “other activities”
clause); R. Churchill and A. Lowe, The Law of the Sea (1988) (hereafter “Churchill and Lowe”), p. 137. No
sovereignty and substantive equality orientation: Rembe, p. 125 (original EEZ concept has been “voided of its

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41. I now turn to whether the provisions establishing the status and setting out the incidents
of the exclusive economic zone answer the question whether the regulation of bunkering in the
exclusive economic zone is categorically an incident of exclusive economic zone status within
the sole competence of the coastal State. One authority construes the language in article 58,
paragraph 1, “other internationally lawful uses of the sea related [inter alia,] to” the freedom of
navigation and such as those associated with the operation of ships as long as they are
“compatible with the other provisions of this Convention,” and suggests that “[i]t seems ... that
the determination of whether a given activity, such as offshore servicing, is to be considered as a
‘related’ lawful use or not, will depend largely on the coastal State.”34 Similarly, Respondent
denies that such activities in this case can be related to navigation by non-coastal States, urging
that they are more related to fishing (being supportive thereto) and that, at any rate, the coastal
State has a considerable fiscal interest in sales to the foreign flag vessels (CM, paragraphs 102-
104). However, the materials in this section confirm the view emerging from my broader
analysis and suggest that, prima facie, the matter is more complex. It must therefore be
concluded that, subject to what is said below, the further evidence discussed so far does not
reveal any presumption or predilection favouring any class of State.35

Possible effects of coastal State claims relating to exclusive economic zones

42. In paragraph 21, I noted views predating the commencement of the process of widespread
adoption of multilateral conventions regulating ocean spaces consistent with the notion that by a
process of claims and responses thereto, the customary law of the sea could be modified.
Thereby, it was considered that inter alia, rights and jurisdiction could be expanded, especially
as new perceptions of national welfare and technological, economic and scientific needs and
discoveries became manifest. That view was previously advanced with particular force in
relation to sovereignty over submarine areas.36 However, in the context of the new law of the

content” favouring needs of developing countries; id., p. 128 (various African proposals at UNCLOS to make EEZ
rights more akin to sovereignty or include non-living resources); Burke, 20 S.D.L.R. (1983), pp. 600-622 (any
interpretation of Part V going beyond authorized enforcement of laws concerning illegal fishing, to allow
interference with in-transit fishing vessels should be limited by requirements of essentiality to effective enforcement,
insignificant effect on passage and significant benefit to coastal State). However, note Arias in A Latin-American
Perspective, p. 136 (envisaging numerous areas for future coastal State competencies in territorial sea, including
smuggling and fiscal fraud).
(3) Essential natural resources orientation of pre-UNCLOS III national claims to extended maritime jurisdiction:
DOALOS EEZ, pp. 1-2 (Truman Proclamation); id., pp. 3-13 (regional declarations and statements); Lupiacci,
pp. 79-95 (Latin-American national claims up to 1969; Latin-American regional Declarations 1940s to mid-1970s;
African regional Declarations and positions in 1970s; discussions in U.N. Seabed Committee; joint draft articles
submitted by Kenya and Latin-American States in 1970s).
34
Attard, p. 64. This, he says, is subject to the requirement, imposed by article 300, that the parties should
undertake to discharge in good faith their obligations and exercise their rights, jurisdiction and freedoms “in a
manner which would not constitute an abuse of right”.
35
It will be noted that, on their face, the legislation cited by Guinea neither apply in the EEZ nor cover the acts of
the Saiga of which she complains (Applicant’s Memorial (hereafter “M”), pp. 106-111; CM, p. 9; R, pp. 14-19). In
effect, this is the conclusion implied in the Tribunal’s Judgment.
36
For some, such views are related to the notion of the dédoublement fonctionnel, according to which States perform
dual functions as claimants which, in pursuing national interests, seek to attain normative change (generally of a
customary law variety) and as members of the international community which determines the outcome of such
claims.

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sea, the salience of that approach has been very much diminished with: new global consensual
developments; comprehensive texts of a widely accepted conventional law of the sea which are
in places detailed and in others open-textured; guidelines and institutions for solving unfolding
problems, especially of a technical nature; and various touchstones and standards for effective
solution of controversies, with comprehensive procedures and institutions for dispute settlement.
Note must be taken of the slightly diminished importance in the Convention of certain
geographical considerations; the overarching conception of sharing or concurrent uses of
resources, spaces and authority, and a significant notion of communal decision-making.37 This is
consistent with that basis of the freedom of the high seas, previously discussed, which is an
aspect of the current global order of liberal economic access which has been expressed in such
expressions as equal access, free access, non-discrimination and equitableness (see paragraphs
27-31 above). In that setting, flag State freedom of navigation would easily coexist with the
rights of the coastal State and the claims by such States would be less relevant.

43. It is nevertheless useful briefly to explore whether, in recent years, national claims to
exclusive economic zones and rights and jurisdiction therein have had a de facto or de jure impact
on the balance between flag States and coastal States in the exclusive economic zone. Practice after
1982 will be surveyed. It must be stressed that this broad overview is not intended to be complete.

Coastal State claims: Post-1982 practice

44. Prior to 1982, there were several significant claims by States. There also were significant
joint statements elaborating regional positions on maritime entitlements outside of territorial
areas in several regions, notably Latin America and the Caribbean and Africa. After 1982, such
statements appear to have generally abated.38 After that year, also, State claims to or
declarations and other statements about sovereignty or “sovereign jurisdiction” have significantly
diminished. Nevertheless, several States are today thought to claim territorial seas wider than
12 miles and a number do not distinguish between that sea and the exclusive economic zone. In
its 1984 Declaration on signing the Convention, Guinea declared that it reserved “the right to
interpret any article of the Convention in the context and taking due account of the sovereignty
of Guinea and of its territorial integrity as it applies to the land, space and sea.”39 The

37
See Allott, pp. 7-27.
38
Pre-1970 practice: Prior to the Convention, close examination of claims to maritime jurisdiction generally had a
substantial economic and marine scientific thrust. Even claims which, on first impression, appeared to encompass
sovereignty, upon analysis almost invariably appeared not to do so, or did so in an equivocal, non-categorical or
non-exclusive manner. In addition, these claims were predominantly for natural, especially living, resources. By
1970, a general economic and natural resources orientation was patent, especially in the regional declarations in
Latin America and the Caribbean and Africa. Orrego Vicuña, pp. 3 and 11; Attard, pp. 3-16; Nandan in The Law of
the Sea: Essays in Memory of Jean Carroz (FAO 1987), pp. 171-187. See Argentina’s Declaration proclaiming
sovereignty over the epicontinental sea and the continental shelf, 9 Oct. 1946 (41 A.J.I.L. Supp. (1947), pp. 379-380
(while art. 1 declares sovereignty, the recitals clarify the concern with the matters stated in the text). C.f. art. 7 of
the 1950 Constitution of El Salvador (quoted in Lauterpacht in 27 B.Y.I.L. (1950), p. 413). It seems that the
legislation implementing this constitutional provision was limited to fishing and marine hunting (Attard, pp. 453-
456). Post 1970 practice: Orrego Vicuña, pp. 11-12; Attard, pp. 16-30.
39
In fact, the legislation exhibited in this case reveals that Guinea previously never redeemed this promise. Its
customs code is limited to the national territory, including territorial waters. And its “customs radius” of
250 kilometers is a zone for surveillance and the presentation and permissible inspection of documentation relating
to dutiable cargo destined for the national territory. As stated earlier in the text, this case concerns an effort, in the

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declarations or legislation of several coastal States merely envisage that they might make future
claims to significant exercises of authority. Elsewhere, sovereignty seems to be contemplated
mainly in the use of the expression “sovereign rights” - language identical to that in article 56. A
small handful of States have declared that residual rights belong to coastal States as long as they
do not affect the rights granted to other States. The topic provoking the largest number of
statements is military activity in the zone.

45. On the other hand, some language mentions the issue of regulation of the passage of fishing
vessels, i.e., the orientation is on natural/economic resources. Not unrelatedly, some States claim
exclusive jurisdiction in relation to the protection of the marine environment and pollution
controls or prohibit the passage of ships transporting injurious cargo. One claim requires a
license for the conduct of “any economic activity” in the exclusive economic zone or for
activities relating to the recovery of archaeological or historical objects. Yet, an increasing
number of States acknowledge freedom of navigation in the zone.40

46. I am aware of only one State which makes the claim of the power “to prevent the
contravention of any fiscal law or any law relating to customs, immigration, health or the natural
resources of the sea.”41 Even if a few more States concurrently make such claims, this paucity is
of some significance. Mention should be made of opinions provided in these proceedings at the
request of the Applicant by legal practitioners from some 22 countries on the application of laws
of their countries in relation to offshore bunkering in hypothetical circumstances similar to those
in this case where the supply of oil products involves parties which do not possess the coastal
State’s nationality and occurs outside territorial waters. Those opinions all seem to suggest that
such offshore bunkering would not be contrary to those laws.42 Without proper fact-finding in a
case with several dimensions of domestic law, these opinions do not provide much further
guidance regarding the apparent competition between the flag State’s freedom of navigation and
the coastal State’s rights in the exclusive economic zone than do the other materials and

absence of specific legislation, to extend these norms to the field of bunkering fishing vessels. In its final
arguments, Respondent called the zone “a limited [and functional] Customs protection zone based on the principles
of customary international law which are included in the [EEZ]” but which are not a part of the territory of Guinea
(ITLOS/PV.99/18, p. 17 (20 March)). It will be recalled that the critical law allegedly applicable in the zone is No.
94/007/CTRN on petroleum sales which, in Respondent’s final arguments, was “clear,” even though it did not
prohibit off-shore bunkering “verbatim” and “does not affect the rights of … flag States in the EEZ [and] is
completely in conformity with the balance [of coastal and flag States] underlying the … EEZ in modern
international law” (ITLOS/PV.99/18, pp. 18-19 (20 March)). (See also M, pp. 107-109, CM, p. 9; ITLOS/PV.99/7,
pp. 6-8 (11 March); ITLOS/PV.99/15, pp. 8-10 (16 March); ITLOS/PV.99/16, pp. 20-23 (8 March)).
40
Orrego Vicuña, pp. 149-151; Burke in 9 O.D.I..L. (1981), pp. 294, 298 and 305-309; U.S. Panel 383; DOALOS
Bulletin No. 21 (Aug. 1992), pp. 28 and 31, No. 23 (Jun. 1993), pp. 17 and 19, No. 25 (Jun. 1994), pp. 11 and 37.
41
DOALOS Bulletin, No. 16 (Dec. 1990), pp. 18-19.
42
The countries are Argentina, Belize, Brazil, Bulgaria, Cameroon, China, France, Germany, Ghana, Iceland, India,
Italy, Japan, Republic of Korea, Lebanon, Norway, Russia, Sweden, Tanzania, Tunisia, United States of America.
In the case of the opinion by an Italian lawyer, it is stated that “whilst Italy has not proclaimed an exclusive
economic zone, it is not inconceivable that the Italian authorities might seek to exercise customs surveillance and
enforcement powers with respect to deliveries of liable oil products, taking systematically place in the contiguous
zone (or reasonably beyond), if the buyer or recipient of the delivery, albeit a foreign registered vessel, presented a
sufficiently visible and regular factual connection with Italy.” A footnote gives as an example of such a connection
“if a foreign registered tanker regularly supplied fuel oil in the contiguous zone for registered leisure or fishing
vessels, which subsequently regularly called on Italian ports, regularly loaded or unloaded passengers or unloaded
its catch there, and then regularly sailed with empty tanks” (M, Annex 37).

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arguments furnished by both parties. However, prima facie, they suggest that several coastal
States are not purporting to exercise authority in relation to freedom of navigation. This
somewhat strengthens the inference that Guinea did not act consistently with international law.

Coastal State claims: Guinea’s public interest and state of necessity claim

47. The Judgment has correctly rejected Guinea’s justification for its actions based on the
“essential aspects of its public interest” (RJ, paragraph 97), holding that that justification is
incompatible with Part V and therefore contrary to article 58, paragraph 3. Similarly, the
Judgment rejects Guinea’s appeal to the so-called state of necessity, indicating its adoption of the
conditions for that doctrine as approved by the International Court of Justice in the Gabčíkovo-
Nagyamaros Project case (I.C.J. Reports 1997, paragraphs 51 and 52) and article 33 of the
International Law Commission’s Draft Articles on State Responsibility. If claims negatively
affecting the freedom of navigation cannot be appropriately based on the Convention, then
resistance to sanction them on the basis of extra-Convention sources is not unreasonable.43

Coastal State claims: preliminary assessment

48. The foregoing survey provides only very broad indications of the scope of claims by
coastal States in respect of the exclusive economic zone and their relationship to the freedom of
navigation. Just over ten years ago, a study of the subject suggested that there was an “absolute”
consensus that in all legislation claiming coastal State rights over the exclusive economic zone,
the claims were in terms of the natural resources language of article 56, paragraph 1(a), of the
Convention. Speaking more generally, it concluded that despite “the complexity of [much]
national legislation ... they do not reach the point of forming general trends ...”. This appears to
be still the case. The study also suggested that the legislation did not “affect the nature” of the
zone. That also appears to be accurate.44 With reference to freedom of navigation in some of the
specific waters involved in this case, as stated in the Guinea/Guinea-Bissau arbitration, the
exclusive economic zone is not, prima facie, a zone of sovereignty. In other respects, also,
exclusive economic zone status is not without substantial limitations, including those favouring
flag States.

Impact of Other Provisions of the 1982 Convention

49. I noted earlier that much of the sizeable Convention forms part of the broader context for
the articles of Parts V and VII that have a direct bearing on the main issues in this case. For that
reason, both parties have sought to draw interpretative guidance from widely differing provisions
relating to the high seas and maritime areas outside of the territorial sea and analogous areas.

43
Precisely for similar reasons, after the U.K. Government took dramatic action to protect its coastline following the
Torrey Canyon disaster in 1967, in 1969 the parties to the International Maritime Organization adopted the
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties. In turn,
article 221 of the 1982 Convention, recognizing the right of States to take measures beyond the territorial sea to
protect coastlines and related interests from grave and imminent danger from pollution or threat of pollution
following a maritime casualty, requires that such measures shall be “in accordance with international law,”
undoubtedly meaning the 1969 Convention. See eighth report, paragraphs 28-29.
44
Orrego Vicuña, pp. 143 and 153; Guinea/Guinea-Bissau arbitration, paragraph 124.

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Provisions of this nature cover flag State obligations and privileges;45 flag State participation in
maritime order;46 pollution control;47 and marine scientific research.48 What they have in
common is the careful balance of authority and responsibility between the two classes of States;
the cooperative nature of the relationship between the two that is generally expected; and the
substantial nature of the rights generally given to all users. Circumstances permit discussion of
only one group of provisions – those dealing with innocent and related passage through territorial
areas.

50. Several articles relating to maritime territorial areas have a facially negative bearing on
navigation. Article 19, paragraph 2, contains a list of 12 groups of “prejudicial” activities that
deprive passage through the territorial sea of its innocence. Five of them are:

(g) the loading or unloading of any commodity, currency or person contrary to the
customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of wilful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State; ...49.

Comparison of these, and other, activities listed in this paragraph with the many
provisions of Parts V, VII, XII and XIII that this Opinion has reviewed elsewhere is instructive.
Breaches of the provisions in those Parts do not have any stated impact on the freedom of
navigation in the exclusive economic zone as far-reaching as the nullification of innocent passage
status. And of particular importance to the facts of this case, there is no language in article 56
(on coastal State rights, jurisdiction and duties in the exclusive economic zone) comparable to
article 19, paragraph 2(g). Only article 60, paragaph 2, contains similar language, which gives
the coastal State exclusive jurisdiction over those matters but only in respect of artificial islands,

45
See articles 91-94 on registration, nationality and authority and jurisdiction over ships. Burke 1981, p. 303 citing
Oxman, 72 A.J.I.L. (1978), pp. 57 and 72; Warbrick in New Directions on the Law of the Sea (R. Churchill,
K. Simmonds and J. Welch, eds 1973), III, p. 148.
46
See articles 98, 99, 108, 109, 110; Virginia Commentary, III, pp. 176-77; Third United Nations Conference on the
Law of the Sea (R. Platzöder, ed.) (hereafter “Platzöder”), V, pp. 13, 17, 66 and 67; Virginia Commentary, V (S.
Rosenne and Louis B. Sohn, eds, 1989), pp. 13-17 and 66; id. III, pp. 237-242.
47
See articles 210, 211, 216-218, 220, 221, 231, 234; Virginia Commentary, IV (S. Rosenne and A. Yankov, eds.,
1991), pp. 183, 232-237, 279-302, 334-344 and 365; Platzöder, X, pp. 473, 481, 497 and 507.
48
See articles 246 and 252; Virginia Commentary, IV, pp. 392-398 and 519.
49
Article 21, paragraph 1, contains a list of eight groups of laws or regulations relating to innocent passage that
coastal States may adopt. It is somewhat similar to the list in article 19. Of note is sub-paragraph (h) which, like
article 19, paragraph 2(g), mentions the prevention of infringement of “the customs, fiscal, immigration or sanitary
laws or regulations of the coastal State.” Article 42, paragraph 1, is a cognate list of laws and regulations that States
bordering straits may adopt. Sub-paragraph (d) is essentially identical to article 19, paragraph 2(g). According to
article 54, article 42 applies, mutatis mutandis, to archipelagic sea lane passage.

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installations and structures – not over the exclusive economic zone per se.50 By the terms of Part
V, no such general power is given to coastal States in that zone.

51. On close examination, even in the territorial areas the powers of coastal States over foreign
vessels are specified and not without specific limits. This is quite consistent with the
unambitious authority exemplified in article 33 (on the contiguous zone). All of this has
considerable significance as the broader context for the interpretation of the provisions regulating
the exclusive economic zone and the freedom of navigation and related uses of the exclusive
economic zone.

52. It must therefore be concluded that, as regards the respective jurisdiction and rights of the
coastal State and the flag State, at least over vessels, these provisions in other parts of the
Convention provide confirmation of the concurrence and non-preeminence of authority of the
different classes of States in the exclusive economic zone.

Conclusion on Freedom of Navigation

53. This Separate Opinion has corroborated the Tribunal’s finding that Guinea’s customs and
related laws are not applicable because of incompatibility with Part V of the Convention and
because of the unacceptability of the alleged special justifications of public interest and state of
necessity for extension of its laws into the customs radius portion of Guinea’s exclusive economic
zone. Differing from the Judgment, but nevertheless consistently with its findings, the method of
this Opinion has been a detailed exploration of the viability of the flag State’s freedom of navigation
in the exclusive economic zone through the interpretation of articles 58 and 87. In interpreting
those articles, I have primarily examined aspects of Parts V and VII, their immediate context; the
broader context of various other Parts and provisions, including those dealing with the territorial sea
and contiguous zone, and, as necessary, supplementary means of interpretation, including the
historical background and the bases of the principles of freedoms of the high seas and navigation,
and aspects of the historical and juridical basis of the contemporary global economic and general
order. Throughout, the internal consistency of the Convention has led to my finding that the rights
and jurisdiction of coastal and flag States are concurrent and that neither has prima facie
paramountcy or preeminence. Certainly, the institution of the exclusive economic zone has not
diminished the well-established freedom of navigation. On the evidence presented, I therefore find
that Guinea violated the freedom of navigation of Saint Vincent and the Grenadines. However, in
cases such as the present, fuller evidence and arguments would be required in order to determine
whether the vessel in question was involved in activities encroaching on specific and clearly
identified aspects of the coastal State’s jurisdiction over the exclusive economic zone under the
Convention.

SOME REMAINING QUESTIONS

54. Some of the questions remaining include aspects of offshore bunkering, prompt release and
the settlement of disputes involving developing States. Some preliminary comments on these
matters will now be offered.

50
See Virginia Commentary, II, pp. 164-178, 184-203, 367-378 and 481-487; id., IV, pp. 152 and 158-159; id, IV,
pp. 151 and 156.

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 Offshore Bunkering

55. If properly handled, the notion of concurrence of authority can contribute to the avoidance
of potential disputes and, in the case of an actual dispute, the avoidance of a non liquet, given the
unlikelihood that there can be easy or early negotiated reform of the Convention. These goals
are also facilitated by the Convention’s unique feature of a significant variety of norms and
formulas to address the diverse potential disputes and matters requiring resolution. One of the
formulas used in Parts V and VII has already been mentioned – language requiring States to have
“due regard to the rights and duties” of other States with which they have concurrent authority
and jurisdiction. The device is used in a carefully balanced and institutionalized manner in
articles 56, paragraph 2, 58, paragraph 3, and 87, paragraph 2, which evidently must interact with
each other. Another formula is article 59:

Article 59
Basis for the resolution of conflicts regarding the attribution
of rights and jurisdiction in the exclusive economic zone

In cases where this Convention does not attribute rights or jurisdiction to the coastal
State or to other States within the exclusive economic zone, and a conflict arises between
the interests of the coastal State and any other State or States, the conflict should be
resolved on the basis of equity and in the light of all the relevant circumstances, taking
into account the respective importance of the interests involved to the parties as well as
to the international community as a whole.

However, neither party to this case has seriously relied on article 59. The reason might
be the apparent position of the parties that the facts of this case do not call for the application of
this provision.51 Nevertheless, without my taking a position on article 59, the “attribution”
aspect of the provision might be noted. It serves as a reminder that many articles of the
Convention deal with jurisdictional issues, which can be phrased in terms of attribution. The
coastal State has authority and jurisdiction mainly in relation to natural resources and related
matters which have been attributed to it in several provisions. Simultaneously, even in relation
to the environmental protection of those resources, concurrent though non-identical, authority
and jurisdiction has been attributed to port and flag States, international organizations and coastal
States. It has been said that rights concerning economic interests, communication, scientific
research and seabed drilling have been attributed to the coastal State by Part V. However,
notwithstanding the over-complete and ambitious nature of the institutional title “exclusive
economic zone,” economic rights, on the whole, have not been attributed solely to that State. In
view of what this Opinion reveals, the same holds true about the attribution of such other rights
as those concerning communication and navigation.

56. While, in the absence of full argument and data, I am today unable to make a finding about
attribution or specifically identifying the ownership of rights in relation to offshore bunkering,
speaking very generally and based on the systematic review in this Opinion, I must recall that by

51
Several substantial questions of interpretation arise in relation to article 59. These have spawned a very
substantial literature.

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virtue of the prevailing global economic order, all States have a right to free general and
maritime economic access and non-discrimination. Against that background and my detailed
examination of provisions of the Convention, a full and clear body of evidence would be
required properly to address attribution and bunkering. Prima facie, however, the available
evidence is not inconsistent with at least a measure of tolerance of the use of this maritime space
by all States that are legitimate users of non-territorial waters within their respective functional
or other spheres.52

Prompt Release

57. In this case, the Tribunal has ruled against the Applicant’s claim for damages for the
Respondent’s alleged delayed compliance with the Tribunal’s Judgment of 4 December 1997,
ordering the prompt release of the Saiga upon provision by the Applicant of specific financial
security. The reasons given are that while the release of a ship 80 days after the posting of the
bond “cannot be considered as a prompt release,”53 in this case, several factors contributed to the
delay in releasing the ship. I believe that different factors can be attributed to each party.
Factors include the parties’ disagreement about the implementation of the requirements of the
prompt release Judgment, the actual wording on the bank guarantee (originally written in
English), communications difficulties, travel by the representatives of the parties and the novelty
in the international community of the Convention’s prompt release requirement.

58. In view of the need for promptness, everything must be done by the parties to expedite the
process. I believe that, following the Tribunal’s successful handling of its first case of this
nature, prompt release cases will, in time, become relatively routine proceedings in which the
crucial matter for decision is the reasonableness of the financial security.54 Reasonableness

52
See Juda in 16 O.D.I.L. (1986), pp. 32-33 and 40-41 (concurrence of jurisdiction between flag State and coastal
State in relation to protection of marine environment; wholesale interference with navigation rights not allowed by
Convention. Cf. Arias in A Latin-American Perspective, pp. 136-137 (future contingencies connote increases over
time of EEZ authority and jurisdiction of coastal States); Butler in 6 Ga.J.I.L. (1976), p. 114 (near-term competing
uses in what is now (pre-1982) high seas might become so intense that flag State jurisdiction must give way to a new
order of the high seas regulated, perhaps, by international institutions); Attard, pp. 64-65 (all economic,
communication, scientific research and drilling rights already attributed; unattributed rights regarding EEZ can be
solved by resorting to equity in a process in which contestants strengthen their cases by identifying with
international community’s needs); Galindo Pohl in A Latin-American Perspective, p. 46 (economic rights attributed
to coastal State; residual rights are subject to a certain degree of uncertainty).
53
Paragraph 165 of the Judgment. It will be noted that the article 292, paragraph 1, of the Convention allows the
parties a maximum of 10 days from the date of detention to reach agreement on the court or tribunal to handle the
dispute. Thereafter, the Tribunal’s Rules envisage a total of 20 days for completion of all stages of the proceedings,
including the reading of the judgment. This suggests that implementation of the judgment must be similarly prompt.
54
This is underscored by the nature of the application threshold adopted by the Convention for such cases - that “it
is alleged” that the detaining State has not complied with the somewhat undemanding provisions of the Convention
relating to prompt release. It will therefore be recalled that in the Saiga prompt release case, the Tribunal announced
that the standard of appreciation in such cases is that the allegation is “arguable” or “sufficiently plausible.” See
Lauterpacht in Liber Amicorum: Professor Ignaz Seidel-Hohenveldern in honour of his 80th birthday (G. Hafner et
al, eds., 1998), p. 395, noting (1) the nature of the “allegation” threshold and how its saliency can better be
appreciated in view of the utilization of the technique in five other litigation contexts in article 287 and (2) the
nature of the standard of appreciation selected by the Tribunal. See also Rosenne in 13 Int'l Jo. Mar. & Coastal L.,
pp. 487 and 513-514 (this standard “reflects the wide practice of international courts and tribunals that, in instances
of provisional measures, the benefit of the doubt goes to the applicant State”).

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evidently comes into play in paragraph 1 of article 292, in the context of an allegation, generally
by a flag State, that domestic authorities have not complied with the Convention’s various
provisions for prompt release “upon the posting of a reasonable bond or other financial security”.
Reasonableness also is critical in relation to the discretion which paragraph 4 gives to
international courts or tribunals to order prompt release “[u]pon the posting of the bond or other
financial security determined by the court or tribunal”. The security ordered by an international
judicial body will presumptively be reasonable. Although, in the M/V “SAIGA” case, the
Tribunal fixed the amount and broadly determined the “nature and form” of the security, it left
the latter details to the parties. There is no presumption of reasonableness in such situations and,
as seen in the current case, considerable scope for delay. Therefore, it is evident that, in the
future, the objectives of expediting prompt release and ensuring reasonableness will be
facilitated, inter alia, if parties sometimes seek the Tribunal’s participation in various aspects of
the post-judgment task of coming to agreement on aspects of the security.

The Settlement of Disputes between Developing Countries

59. In this case, in relation to its assertion that the application of its legislation in the customs
radius was justified by the notions of public interest and the state of necessity, the Respondent
summoned in aid the great importance to it of the revenue it could obtain from taxes on sales of
petroleum products presently sold offshore (see, e.g., ITLOS/PV.99/15, pp. 7 and 15 (16
March)). At another point, the Respondent referred to the difficulty experienced by some small
developing countries without aeroplanes to give the required (auditory or visual) signals at the
commencement of hot pursuit of perpetrators in fishing matters (ITLOS/PV.99/15, p.14 (16
March)).

60. Evidently, these appeals by the Respondent were based on the serious and understandable
difficulties of a developing country, with scarce resources for the support of national welfare, to
benefit from many aspects of the Convention, to compete in the international marketplace and to
defend its international economic interests. In that connection, it is necessary to recall the
objects and purposes of the Convention mentioned in paragraph 5 of the Preamble, that “the
achievement of [the] goals [set forth in Preambular paragraph 4] will contribute to the realization
of a just and equitable international economic order which takes into account the interests and
needs of mankind as a whole ...”. Paragraph 5 goes on to embrace “in particular, the special
interests and needs” of one highly deserving sector of mankind which very much influenced the
development of the exclusive economic zone institution. That sector is the developing countries,
for the benefit of which the Convention makes special provision in several places. While the
intensity and sincerity of the Respondent’s desire are thus sympathetically acknowledged, the
practical constraints on attaining it must be taken into consideration. For example, it must be
recalled that in this case the Applicant is also a developing country.

61. Nevertheless, the Respondent’s invocation of such largely extra-Convention devices as

public interest and state of necessity recalls an existing set of approaches for attempted relief: to
apply escape mechanisms expressly or impliedly envisaged by the terms of a governing treaty, or
acknowledged by the parties to a dispute or by the court or tribunal as being applicable under
international law. An example is rebus sic stantibus. Another is the device for obtaining
temporary relief or escape from the obligations of an economic treaty well known in the field of

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international economic law, where the treaty itself often provides broad standards for such relief
or escape. Such approaches, and others, may be relevant.55 Naturally, in cases involving the
Convention, such assertions would be subject to normal interpretative scrutiny. In addition, they
face such hurdles as arguments that: the complex and numerous institutions of the 1982
Convention represent significant and change-resistant compromises; also that they have an
elevated status in the hierarchy of juridical norms that is resistant to derogation.56

(Signed) Edward A. Laing

55
See Laing, 14 Wisc. I.L.J.(1996), pp. 311-312. An example of such mechanisms is article 221 of the Convention.
It cannot be predicted whether such approaches would satisfactorily address such concerns as those expressed by the
Respondent in relation to a possible future off-shore tax-free world (ITLOS/PV.99/18, p. 21 (20 March)).
Nevertheless, appropriate juridical mechanisms must be used for addressing perceived problems.
56
I take no position on the view that the Convention’s norms, or many of them, are of a “constitutional” nature.

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 DISSENTING OPINION OF JUDGE WARIOBA

1. Although I find the reasoning of the Tribunal is inadequate I agree with the decision reached
in paragraph 183(1), (2) and (13) and therefore I have voted in favour. I do not however agree with
the decision of the Tribunal in paragraph 183(3) and (5) and consequently I have been obliged to
vote against on the rest of the paragraph.

2. The Judgment as a whole lacks transparency. In the first place the summary of evidence and
arguments of the parties is inadequate in that it has omitted some important aspects of such evidence
and argument. The summary of evidence and arguments that has been made is not objective. I do
not intend to elaborate further on this point in greater detail as far as the whole judgement is
concerned but I will demonstrate this point as I deal with the issues on which I have reached a
different conclusion from that of the majority.

3. The reasoning of the majority is also not adequate in the sense that it has in places departed
from the evidence and arguments of the parties. In addition such reasoning has been vague to the
extent of making the Judgment lack transparency. Having said that I now turn to the issue of the
registration of the Saiga.

4. On the question of nationality of the Saiga the Judgment of the Tribunal states as follows in
paragraphs 62 and 63:

62. The question for consideration is whether the Saiga had the nationality of Saint
Vincent and the Grenadines at the time of its arrest. The relevant provision of the
Convention is article 91, which reads as follows:

Article 91
Nationality of ships

1. Every State shall fix the conditions for the grant of its nationality to ships,
for the registration of ships in its territory, and for the right to fly its flag. Ships
have the nationality of the State whose flag they are entitled to fly. There must
exist a genuine link between the State and the ship.

2. Every State shall issue to ships to which it has granted the right to fly its
flag documents to that effect.

63. Article 91 leaves to each State exclusive jurisdiction over the granting of its
nationality to ships. In this respect, article 91 codifies a well-established rule of general
international law. Under this article, it is for Saint Vincent and the Grenadines to fix the
conditions for the grant of its nationality to ships, for the registration of ships in its
territory and for the right to fly its flag. These matters are regulated by a State in its
domestic law. Pursuant to article 91, paragraph 2, Saint Vincent and the Grenadines is
under an obligation to issue to ships to which it has granted the right to fly its flag
documents to that effect. The issue of such documents is regulated by domestic law.

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5. In these two paragraphs the Tribunal has correctly stated the legal position. It would
therefore be expected that the Tribunal would reach a decision by interpreting article 91 of the
Convention in the light of the evidence and arguments submitted before it. There was sufficient
evidence submitted by the parties, including the pertinent law of Saint Vincent and the
Grenadines. The two parties had also submitted extensive arguments on this point.

6. In the context of this case, the Tribunal is obliged to examine the issue of nationality and
registration of the Saiga from the standpoint of what is enshrined in article 91 of the Convention,
taking into account the conditions set by Saint Vincent and the Grenadines.

7. The relevant law of Saint Vincent and the Grenadines for the purposes of the present case
is the Merchant Shipping Act 1982 (with subsequent amendments). In determining whether the
Saiga had the nationality of Saint Vincent and the Grenadines at the time of its arrest we have to
examine this law.

8. When Guinea raised the issue of the nationality of the Saiga (see Counter-Memorial,
paragraph 10) Saint Vincent and the Grenadines responded by stating that the ship was registered
on 12 March 1997 and was still validly registered and would remain registered until deleted from
the registry in accordance with the conditions prescribed by the Merchant Shipping Act (see
Reply, paragraph 24 and Annex 7). At the oral hearing counsel for Saint Vincent and the
Grenadines argued that the expiry of a registration certificate does not lead to cessation of
nationality. He put it as follows:

Just as a person does not become stateless when his passport expires, so a vessel does not
cease to remain on the Vincentian register when the provisional certificate expires. A
provisional certificate, like a passport, is evidence of a national status. It is not the
source of that status.

9. The meaning conveyed here is that the grant of nationality is different from registration
under the law of Saint Vincent and the Grenadines. Examination of the Merchant Shipping Act,
however, shows that nationality is acquired through registration. The relevant provisions in the
Merchant Shipping Act are sections 9, 12, 16, 17 and 18 (see Annex 6 to the Reply). Section 9
sets requirements of age and ownership of any ship seeking registration in Saint Vincent and the
Grenadines. Originally the age of the ship was set at forty years or below but was later amended
to twenty-five years. Section 12 specifies who may make an application to register a ship. That
application has to be made to the Registrar or the Commissioner for Maritime Affairs and fees
must be paid. Sections 16, 17 and 18 state as follows:

16. (1) Before any ship is registered for the first time as a Saint Vincent and the
Grenadines ship under this Act, the following evidence, in addition to the
declaration of ownership, shall be produced before the Registrar or the
Commissioner, namely -

(a) in the case of a ship built in Saint Vincent and the Grenadines or in any other
Commonwealth country, a certificate signed by the builder of the ship
containing a true account of the proper denomination and of the tonnage of

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 the ship as estimated by him, the time when and the place where the ship was
built, the name of the person, if any, on whose account the ship was built and,
if there has been any sale, the bill of sale under which the ship has become
vested in the person who applies for registration;

(b) in the case of a ship built elsewhere, the same particulars as in paragraph (a)
unless the person who makes the declaration of ownership declares that the
time and place of the building of the ship are unknown to him or that the
builder’s certificate cannot be obtained, in which case the bill of sale or other
document under which the ship has become vested in the applicant for
registration shall be sufficient;
…

17. As soon as the requirements preliminary to registration have been complied with,
the Registrar or Commissioner shall, unless he has reason to withhold further
action, enter in the register the following particulars regarding the ship, namely -

(a) the name of the ship and the name of the port to which the ship belongs;

(b) the details comprised in the surveyor’s certificate of tonnage;

(c) the particulars respecting her origin stated in the declaration of ownership;

(d) the name, address and occupation of the registered owner, and if there are
more owners than one the name of all of them and the proportion in which
they are interested; and

(e) the official number of the ship.

18. (1) Every ship registered under this Act shall have as its flag the national flag of
Saint Vincent and the Grenadines without any modifications whatsoever.
…

10. From these provisions it can be seen that as soon as the conditions specified in section 16 are
complied with a ship will be registered under section 17. Once a ship is registered it becomes
entitled to fly the flag of Saint Vincent and the Grenadines under section 18. As has been seen
above, under article 91, paragraph 1, of the Convention “[s]hips have the nationality of the State
whose flag they are entitled to fly“. It follows, therefore, that under the law of Saint Vincent and the
Grenadines registration confers nationality to a ship. A certificate issued under section 26 of the
Merchant Shipping Act is evidence of registration. Since registration confers nationality to the ship
the certificate is conclusive evidence of nationality. It is therefore not correct to compare a
certificate of registration to a passport because the process of acquiring citizenship is different from
that of obtaining a passport. A passport is not conclusive evidence of citizenship. A person may be
issued a passport without acquiring citizenship. A passport is a document which enables an
individual to travel abroad under the protection of a State. Many refugees in the world, particularly

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political refugees, have been issued passports in countries of asylum without acquiring or even
seeking citizenship in those countries.

11. The Judgment of the Tribunal is premised on four grounds set out in paragraph 73. The first
ground is that Saint Vincent has adduced evidence to support the claim that registration had not
been extinguished at the time of the arrest of the Saiga. The evidence that the Tribunal has relied
upon includes references to the Merchant Shipping Act 1982 and overt signs such as the inscription
of “Kingstown” as the port of registry, the documents on board and the ship’s seal, which contained
the words “SAIGA Kingstown” and the charter-party which recorded Saint Vincent and the
Grenadines as the flag State. This is very weak reasoning.

12. The Saiga was bought through an auction by Tabona Shipping Company of Cyprus in
February 1997. The new owners decided to register it in Saint Vincent and the Grenadines and
two weeks after buying the vessel, Tabona Shipping Company submitted an application. A
Provisional Certificate was issued on 14 April 1997, valid up to 12 September 1997. A
Permanent Certificate was issued on 28 November 1997.

13. The relevant provisions in the Merchant Shipping Act are sections 36, and 37. They state:

36. (1) Where any ship, registered under a flag other than the national flag of Saint
Vincent and the Grenadines, is sought to be registered provisionally as a Saint
Vincent and the Grenadines ship under this Act, an application shall be made for
the purpose, by or on behalf of the owner, to the Registrar or the Commissioner,
and every such application shall contain such particulars, comply with such
formalities, be accompanied by such documents and be subject to payment of such
fee as may be prescribed, and upon compliance the Registrar or the Commissioner,
as the case may be, shall issue a provisional certificate of registration of the ship.

(2) The provisional certificate of registration issued under subsection (1) shall
have the same effect as the ordinary certificate of registration until the expiry of
one year from the date of its issue.

(3) Every applicant for registration of a ship under this section shall, without
prejudice to the generality of the provisions of subsection (1), produce the
following evidence, namely -

(a) in respect of the ship -

(i) evidence to establish that any foreign certificate of registration or

equivalent document has been … duly closed;

(ii) if there is an outstanding certificate, evidence to show that the

government who issued it has consented to its surrender for
cancellation or closure of registration; or

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 (iii) a declaration from previous owners undertaking to delete the ship
from the existing registration and confirming that all outstanding
commitments in respect of the ship have been duly met;

(b) evidence to show that the ship is in a seaworthy condition;

(c) evidence to show that the ship has been marked as provided in section
22 or that the owner of the ship has undertaken to have the ship so
marked immediately upon receipt of a provisional certificate of
registration;

(d) evidence of payment of the fee due on the first registration and of the
annual fee for one year in respect of the ship.
…

37. The provisional certificate of registration shall cease to have effect if, before the
expiry of sixty days from its date of issue, the owner of the ship in respect of which
it was issued has failed to produce to the issuing authority -

(a) a certificate issued by the government of the country of last registration of the
ship (or other acceptable evidence) to show that the ship’s registration in that
country has been closed; or

(b) evidence to show that the ship has been duly marked as required by section
22.

14. It will be noted that under sections 16, 17, and 18 of the Merchant Shipping Act a ship does
not get registered until all the conditions for the grant of nationality are cumulatively fulfilled. A
mere application does not entitle a ship to registration and nationality. The procedure for
provisional registration is, however, different as can be seen in sections 36 and 37.

15. In such a case, once an application is made a provisional registration is immediately

effected. That provisional registration confers temporary nationality to the ship while at the
same time it retains its existing nationality for a short time. Under the law of Saint Vincent and
the Grenadines the time allowed for a ship to have double nationality is two months. Two
conditions are set by the Act, conditions which will lead to the loss of the temporary nationality
if they are not performed. The first condition is for the owners of the ship to terminate the
nationality of the previous flag State and the second is the inscription of “Kingstown” as the port
of registry.

16. The question is whether the Saiga had fulfilled the conditions for provisional registration at
the time of its arrest in October 1997. In my view the answer is in the negative. Two conditions
under section 37 had to be satisfied in the first two months. One of them, the inscription of
“Kingstown” on the ship, was satisfied. But there was no evidence that the second condition of
terminating the nationality of Malta was fulfilled. Saint Vincent and the Grenadines failed
completely to provide evidence on this point.

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17. The issue of the registration of the Saiga was first raised by Guinea as follows:

10. The MV “SAIGA” was built in 1975. On the day of its arrest by Guinean authorities
on 28 October 1997, it was not registered under the flag of St. Vincent and the Grenadines.
As can be seen in Annex 13 of the Memorial, the MV “SAIGA” had been granted a
Provisional Certificate of Registry by St. Vincent and the Grenadines on 14 April 1997.
This Provisional Certificate, however, had already expired on 12 September 1997. The MV
“SAIGA” was arrested more than a month later.

The Permanent Certificate of Registry has only been issued by the responsible authority
of St. Vincent and the Grenadines on 28 November 1997. It is thus very clear that the
MV “SAIGA” was not validly registered in the time period between 12 September 1997
and 28 November 1997. For this reason, the MV “SAIGA” may [be] qualified to be a
ship without nationality at the time of its attack.
(see Counter-Memorial, paragraph 10)

18. Saint Vincent and the Grenadines responded as follows:

24. … When a vessel is registered under the flag of St Vincent and the Grenadines it
remains so registered until deleted from the registry in accordance with the conditions
prescribed by Section 1, articles 9 to 42 and 59 to 61 of the Merchant Shipping Act 1982.
At the time of registration a provisional certificate of registry is issued, followed by a
permanent certificate of registry when certain conditions are satisfied. In the case of the
M.V. Saiga her location prevented delivery on board of the permanent certificate but this
in no way deprived the vessel of its character as Vincentian nor had the effect of
withdrawing it from the register. Had there been any doubt in this regard, inspection of
the Ship Register would have eliminated it. Further re-confirmation of this position is
supplied with this Reply.
(see Reply, paragraph 24)

19. In October 1998, the Commissioner for Maritime Affairs had written as follows:

TO WHOM IT MAY CONCERN

…
I hereby confirm that m.t. “SAIGA” of GT 4254 and NT 2042 was registered under the
St. Vincent and the Grenadines Flag on 12th March, 1997 and is still today validly
registered.
(see Annex 7 to Reply )

20. It is significant to note that the Commissioner for Maritime Affairs wrote this letter after
Guinea had raised the issue of registration in the Counter-Memorial. It is also significant to note
that the statement that the location of the Saiga prevented the delivery of the Permanent
Certificate is not true because that certificate was issued after the arrest of the vessel. Guinea
replied as follows:

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 14. St. Vincent and the Grenadines initially produced in Annex 13 of the Memorial a
Provisional Certificate of Registry for the M/V “SAIGA” dated 14 April 1997 and a
Permanent Certificate of Registry dated 28 November 1997. In Annex 7 of the Reply,
there is now produced a declaration of the Maritime Administration of St. Vincent and
the Grenadines in Geneva dated 27 October 1998. It is addressed “to whom it may
concern” and confirms that the M/V “SAIGA” was registered under the flag of
St. Vincent and the Grenadines on 12 March 1997 and would still be validly registered
today, i.e. on 27 October 1998.

15. St. Vincent and the Grenadines argues that the M/V “SAIGA” had its nationality
on the relevant date of 28 October 1997, because a vessel once registered under the flag
of St. Vincent and the Grenadines remains so registered until deleted from the Registry.
This, however, is neither reflected in the 1982 Merchant Shipping Act of St. Vincent and
the Grenadines, nor in the above-mentioned certificates of registry. The Provisional
Certificate expressly states that it “expires on 12 September 1997.” According to
Section 37 of the Merchant Shipping Act, a provisional certificate of registry shall cease
to have effect even earlier, namely before the expiry of 60 days from the date of issuance
of the certificate if the owner of the vessel failed to produce some documents. In any
case, the latest date when the Provisional Certificate for the M/V “SAIGA” could have
expired is 12 September 1997. Contrary to the assertion of St. Vincent and the
Grenadines, there is no section in the Act that provides that a provisionally registered
vessel remains registered until deleted from the Registry.
(see Rejoinder, paragraphs 14 and 15)

21. At the close of the written proceedings it appeared that registration of the Saiga would be
one of the key issues. The Tribunal, acting in accordance with its rules of procedure, required
the parties to submit certain documentation. Among other things Saint Vincent and the
Grenadines was required to submit documentation on the registration of the Saiga (see letter of 4
February 1999 from the Registrar). The Deputy Commissioner for Maritime Affairs responded
on 1 March 1999 as follows:

I refer to the recent request from the International Tribunal for the Law of the Sea for
further documentation on the registration status of the MV “SAIGA” on 27th October
including a copy of the register entry of the MV “SAIGA” in the Register of Ships of
Saint Vincent & the Grenadines as at 27th October 1997. I can advise the Tribunal as
follows:

The registration of the MV “SAIGA” was recorded on 26th March 1997 and a copy of the
Registry Book page was printed on 15th April 1997 as appears at “A”. I can confirm that
the Owners of the “SAIGA” fulfilled the requirements of Article 37 of the Merchant
Shipping Act (the “Act”) having provided satisfactory evidence that (a) the ship’s
registration in the country of last registration had been closed; and (b) the ship had been
duly marked as required by Section 22. A copy of the Ship’s Carving and Marking Note
in respect of (b) above appears at “B”. The Register entry made on 26.03.1997
accordingly remained effective as at 27th October 1997.

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 The Registry Book page could have remained the same for up to a year in accordance
with Section 36 (2) of the Act unless the MV “SAIGA” had been deleted from the
Register (in which case a copy of the Registry Book page would have been issued
showing this). An example of a Registry Book page showing a vessel that has been
deleted appears at “C”. However this was not the case with the “SAIGA” which
remained provisionally registered until 28th November 1997 when a Permanent
Certificate of Registry was issued. The Registry Book page would have been changed
around this time to show that a Permanent Certificate had been issued and a copy of the
Registry Book page showing this as issued at a subsequent date appears at “D”.

I should add that it is Registry practice for Provisional Certificates of Registry to be

issued for six-month periods as was done with the “SAIGA”. One purpose of this is to
encourage owners to comply with the formalities of permanent registration sufficiently in
advance of the one-year validity period of the provisional registration period under
Section 36 (2) of the Act.

Moreover, in my experience it is very common for Owners to allow the validity period of
the initial Provisional Certificate to lapse for a short period before obtaining either a
further Provisional Certificate or a Permanent Certificate (as was the case here).
However, for the reasons given above this does not affect the fact that the MV “SAIGA”
remained validly registered in the Register of Ships of Saint Vincent & the Grenadines as
at 27th October 1997.

I trust this assists.

Best regards,

Najla Dabinovic
Deputy Commissioner for Maritime Affairs
(Signed)

22. As can be seen from the letter the Deputy Commissioner submitted a copy of the relevant
page of the Registry book and a copy of the Ship’s Carving and Marking Note but did not submit
the certificate of deletion from the Registry of Malta.

23. At the oral hearing Counsel for Guinea made the following comment:

I am a little astonished about the deletion certificate from the former Registry. We have
heard that the Saiga, before it was bought in auction by the Tabona Shipping Company, was
registered under the Maltese flag. I would have expected that if the idea or purpose is to
give all evidence possible, then such a certificate would be enclosed, as the other one, the
Declaration of the Classification Society of the Russian Registry, is enclosed.
(see ITLOS/PV.99/8 of 11 March 1999)

24. The Tribunal still considered it important to have documentary evidence on the deletion of
the Saiga from the Malta Register. On behalf of the Tribunal and again in accordance with the
rules of procedures, the President conveyed this, among other matters, to the parties at a meeting

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on 2 March 1999. (Dr. Plender, Counsel for Saint Vincent and the Grenadines, referred to this
meeting in his submission on 18 March 1999 (see ITLOS/PV.99/16, page 15).) Saint Vincent
and the Grenadines still failed to produce documentary evidence.

25. On March 11, 1999, during the oral hearing Guinea made the following submission:

The Republic of Guinea maintains that the M/V Saiga was not validly registered under
the flag of Saint Vincent and the Grenadines on the day of its arrest by the Guinean
Customs authorities on 28 October 1997. Thus, the requirements of article 91 of the
Convention are not fulfilled and the M/V Saiga may be qualified to have been a ship
without nationality at the time of its attack.

The tanker had been granted a Provisional Certificate of Registry by Saint Vincent and
the Grenadines on 14 April 1997. The expiry date of this Provisional Certificate was
already up on 12 September 1997, more than a month before its arrest. A Permanent
Certificate of Registry had only been issued by the responsible authority of Saint Vincent
and the Grenadines on 28 November 1997, exactly one month after the arrest of M/V
SAIGA. The logical conclusion is that M/V SAIGA was not validly registered in the
time period between 12 September 1997 and 28 November 1997.
…

There are only two relevant provisions of that Act dealing with provisional certificates of
registration: sections 36 and 37.

In her reply, Saint Vincent and the Grenadines referred particularly to section 37, which
reads:

“The provisional certificate of registration shall cease to have effect if, before the
expiry of 60 days from its date of issue, the owner of the ship in respect of which it
was issued has failed to produce to the issuing authority

(a) a certificate issued by the government of the country of last registration of the
ship (or other acceptable evidence) to show that the ship’s registration in that
country has been closed; and

(b) evidence to show that the ship has been duly marked as required by
section 22.”

This provision deals with special circumstances, namely the failure to produce certain
documents in which a provisional certificate ceases to have effect only after two months
of its issuance. The wording was:

“the provisional certificate shall cease to have effect before the expiry of sixty days
from its date of issue”.

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 If these two documents had not been provided within the time period of 60 days after the
issuance of the provisional certificate, this provisional certificate would be invalid after
60 days. That is the clear meaning of section 37.
(see ITLOS/PV.99/8, pp. 36 and 37)

26. On 18 March 1999 the Tribunal again addressed a communication to Saint Vincent and the
Grenadines as follows:

I refer to the note “Completion of Documentation” transmitted to you on

4 February 1999 (copy attached). May I draw your attention to item 14 of the note
regarding any documentary record concerning the deletion of the “Saiga” from the
Register of Malta.
(see letter of 18 March 1999)

27. The response of Counsel for the Applicant was as follows:

Section 37(a) of the Merchant Shipping Act provides for the registration of a vessel
where the applicant has produced either a certificate issued by the government of the last
country of registration or “other acceptable evidence” to show that the registration had
been closed. In the case of the M/V Saiga, it met the second of those conditions. Since
there has never been any suggestion that the Saiga remains on the Maltese register, we
have judged it unnecessary to trouble the Tribunal with details of her history under a
different name and a different flag years before the events which have given rise to this
litigation.
(ITLOS/PV.99/16 of 18 March 1999)

28. Guinea responded to the statement of Saint Vincent and the Grenadines in the following
manner:

The Deputy Commissioner, as well as Dr. Plender, failed to explain what was the other
acceptable evidence that apparently proved that the registration in the former registry had
been closed. There would be no other acceptable evidence besides a deletion certificate
of the Maltese register. The fact that Saint Vincent and the Grenadines is not in a
position to provide the International Tribunal with such a deletion certificate serves, in
my view, as clear evidence that the M/V Saiga was not deleted from the Maltese Registry
at the time of the arrest. I have no doubt that the International Tribunal will also come to
this conclusion, particularly when considering Dr. Plender’s explanation for not having
produced the deletion certificate when he said it is unnecessary to trouble the Tribunal
with details of her history under a different name and registry.
(see ITLOS/PV.99/18 of 20 March 1999)

29. I accept the argument of Guinea. The Tribunal had addressed written communication twice
and oral communication once to Saint Vincent and the Grenadines and Counsel knew well the
importance of providing a certificate of deletion from the Maltese government or “other acceptable
evidence”. The Tribunal specifically wanted this evidence but Counsel brushed aside the request.
There is no other conclusion except to accept that there was no deletion of the Saiga from the

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Registry of Malta. On this point alone the Saiga had lost its provisional registration and provisional
nationality two months after March 26, 1997. The Saiga, therefore, did not have the nationality of
Saint Vincent and the Grenadines when it was arrested in October 1997.

30. It was stated by Saint Vincent and the Grenadines that section 36(2) overrides any practice
and instructions to the extent that they are inconsistent with it (and the Tribunal implicitly seems
to have accepted this argument). This argument is without merit. The official brochure (see
Memorial, Annex 5) states clearly that the practice of Saint Vincent and the Grenadines is to
issue a provisional certificate for six months and if need arises extend it for another six months.
There is nothing in the Merchant Shipping Act which forbids the authorities to issue a
provisional certificate of any duration. The Applicant submitted evidence that showed that other
States in the region have similar laws and practice on the issue. Clearly section 36(2) is not an
extension section but rather a limiting one. What it says is that provisional registration cannot
exceed one year. It can be less, but whenever it is valid the holder has the same rights that are
accorded under an ordinary certificate. There is nowhere in the Act a provision which states that
section 36(2) revives an expired certificate.

31. The Saiga was provisionally registered in March 1997. The provisional registration expired
on 12 September and it was not renewed. Since no permanent certificate was issued during that
time the assumption is that not all the conditions for the acquisition of nationality had been satisfied.
The provisional registration was not extended or renewed and Saint Vincent and the Grenadines and
the shipowner admitted in evidence that there was a lapse. This means provisional nationality
lapsed at the latest on 12 September 1997. From that date, the Saiga did not possess the nationality
of Saint Vincent until 28 November 1997. So when it was arrested on 28 October 1997, it did not
have the right to fly the flag of Saint Vincent and the Grenadines.

32. In paragraph 72 the Judgment has in some way established a standard of appreciation of the
evidence. That paragraph reads as follows:

72. On the basis of the evidence before it, the Tribunal finds that Saint Vincent and the
Grenadines has discharged the initial burden of establishing that the Saiga had Vincentian
nationality at the time it was arrested by Guinea. Guinea had therefore to prove its
contention that the ship was not registered in or did not have the nationality of Saint
Vincent and the Grenadines at that time. The Tribunal considers that the burden has not
been discharged and that it has not been established that the Saiga was not registered in or
did not have the nationality of Saint Vincent and the Grenadines at the time of the arrest.

33. The Tribunal, by this paragraph, is in fact saying that the burden of proof was initially on
Saint Vincent and the Grenadines. That burden is not of a high standard but something less.
After that the burden would shift to Guinea. The Tribunal has not explained what sort of
standard Saint Vincent and the Grenadines had to meet but when the Tribunal talks simply of
initial burden it sounds like Saint Vincent and the Grenadines was only under obligation to
produce prima facie evidence. I do not believe that standard was applicable here. I do not
however feel the need to discuss the issue because I believe the burden was all the time on
Guinea to prove that the Saiga was not registered at the time of the arrest. I say so because the
issue of registration was raised by Guinea and it was incumbent upon her to prove it.

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34. The evidence required to prove that a ship has the nationality and is registered in Saint
Vincent and the Grenadines under the terms of article 91 of the Convention in reality consists of
documents. The first important document was the Merchant Shipping Act 1982. That Act was
important in order to ascertain the conditions of nationality and registration as determined by
Saint Vincent and the Grenadines in terms of article 91, paragraph 1, of the Convention.

35. Under the Merchant Shipping Act provisional registration is signified by the issue of a
provisional certificate. The Provisional Certificate was submitted to the Tribunal and it indicated
that it was issued on 14 April 1997 and would expire on 12 September 1997. The same
procedure is followed with regard to a permanent certificate. The Permanent Certificate was also
presented to the Tribunal and it indicated that it was issued on 28 November 1997. The
Merchant Shipping Act also requires that registration should be recorded in the Registry Book.
The relevant page of the Registry Book was produced and it showed that the Saiga was
registered on 12 March 1997 and recorded in the book on 26 March 1997 and registration would
expire on 12 September 1997. Lastly the Merchant Shipping Act requires the marking of the
ship and the production of a certificate of deletion from the previous State of registry. A Carving
and Marking Note was produced, dated 14 April 1997. Guinea and the Tribunal requested Saint
Vincent and the Grenadines to provide the deletion certificate or other acceptable evidence of
deletion but Saint Vincent and the Grenadines failed to do so.

36. The Merchant Shipping Act 1982 does not specifically provide for the duration of a
provisional certificate, but the Tribunal was provided with the official brochure of the
Government of Saint Vincent and the Grenadines, which stated:

The provisional registration certificate is issued for six months and can be extended,
under certain circumstances, for a further period of six months.

37. That is the official practice of Saint Vincent and the Grenadines given in an official
document. But other documents were submitted which appeared to give a contrary view. The
first one was the letter of the Commissioner for Maritime Affairs dated 27 October 1997 which
stated that the Saiga was registered on 12 March 1997 and was still registered. This cannot be
accepted because the Certificate, as issued and recorded, was to expire on 12 September 1997
and the Permanent Certificate had not been issued on 27 October 1997 (it was issued on
28 October 1997).

38. The other document, which was submitted, was the letter of the Deputy Commissioner for
Maritime Affairs dated 1 March 1997. This letter makes several statements. It states that the
registration of the Saiga was recorded on March 26 1997, which agrees with the entry in the
Registry Book. It also states that the owners had provided satisfactory evidence that the
registration in the previous registry had been closed (but that evidence was not produced). It
further states that the duration for a provisional certificate, according to section 36(2) of the
Merchant Shipping Act, was one year. And finally it states that the Provisional Certificate had
expired.

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39. The basis for the Tribunal accepting the evidence of Saint Vincent and the Grenadines is
contained in paragraph 67 of the Judgment, which reads:

Saint Vincent and the Grenadines has produced evidence before the Tribunal to support
its assertion that the Saiga was a ship entitled to fly its flag at the time of the incident
giving rise to the dispute. In addition to making references to the relevant provisions of
the Merchant Shipping Act, Saint Vincent and the Grenadines has drawn attention to
several indications of Vincentian nationality on the ship or carried on board. These
include the inscription of “Kingstown” as the port of registry on the stern of the vessel,
the documents on board and ship’s seal which contained the words “SAIGA Kingstown”
and the then current charter-party which recorded the flag of the vessel as “Saint Vincent
and the Grenadines”.

40. The Tribunal has not given a list of the documents on board the Saiga but the only
document produced at the hearing, which had relevancy to registration as required by the law of
Saint Vincent and the Grenadines, was the Provisional Certificate, which had expired. The other
documents including the charter-party had no relevance to registration. They were documents
which had relevancy to administration and operational matters.

41. The inscription of “Kingstown” on the stern of the vessel is one of the conditions for
provisional registration, which had to be fulfilled in the first two months. The other was the
certificate of deletion from Malta, which could not be produced. The non-production of that
document alone deprived the vessel of provisional registration.

42. The Tribunal also has not identified the provisions in the Merchant Shipping Act that Saint
Vincent and the Grenadines made reference to. But the provision, which was referred to, is
section 36(2) which states that “[t]he provisional certificate of registration issued under
subsection (1) shall have the same effect as the ordinary certificate of registration until the expiry
of one year from the date of its issue”. It had been stated by the Deputy Commissioner that this
provision extends the duration of the certificate to one year. Counsel for Saint Vincent and the
Grenadines put a lot of emphasis on it. I have rejected this explanation (see paragraph 30).

43. Judge Anderson, in his Separate Opinion, makes the point that the meaning and effect of, in
particular, section 36(2) was explained in regard to the Provisional Certificate of Registration. I
disagree. The explanation, which was offered, came from the Deputy Commissioner for
Maritime Affairs in her letter of March 1999. Certainly it cannot be held that the Deputy
Commissioner is competent to explain legislation. The other “explanation” came from Counsel
for Saint Vincent and the Grenadines. If that explanation has to be taken into account the
contrary explanation of the Counsel for Guinea should also be taken into account.

44. In any case the statement of the Deputy Commissioner is full of contradictions. The
Commissioner is the one who issued the Provisional Certificate and stated it would expire after
six months. This must have been done in accordance with the law. So it is a contradiction to
turn around and say the duration of a provisional certificate is one year. Secondly she admits in
the same letter that the Provisional Certificate had lapsed. Lastly the statement of the Deputy
Commissioner contradicts the explanation in the official brochure. Clearly the official

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explanation in the brochure should be accepted over the explanation of the Commissioner, who
in any case would be interested to defend herself in a situation where it appears something was
wrong.

45. The majority has accepted the explanation of the Deputy Commissioner to the effect that
satisfactory evidence was provided by the owners (paragraph 70 of the Judgment). The
statement of acceptance has been made without giving reasons. It is, however, disturbing for the
majority to take this position. It is the Tribunal itself which insisted on the production of the
deletion certificate or other acceptable evidence. The Deputy Commissioner gave her
explanation on 1 March 1999. The Tribunal was not convinced and that is why on
18 March 1999 it wrote another letter asking for documentary evidence. It is disturbing that the
explanation which was not convincing up to the end of the oral hearing has suddenly become
convincing without explanation.

46. The second ground on which the Judgment is based is what is termed as the consistent
behaviour of the Applicant. It is argued that the Applicant has operated at all times as the flag
State in all the phases of the case. This is indeed a strange argument in the context of article 91
of the Convention. Under that article, as has already been stated, States have exclusive
jurisdiction to set the conditions for the grant of nationality to ships. Saint Vincent and the
Grenadines has set those conditions in the Merchant Shipping Act. Either a ship is registered
under those conditions or it is not registered. The behaviour of Saint Vincent and the Grenadines
will not change what is in its law, it will not change the words on the Certificate of Registration,
and it will not change what is inscribed in the Book of Registry.

47. The Tribunal is in a way trying to amend the Convention by introducing new conditions
outside article 91. Under that article it is only the flag State which can fix conditions for
registration of ships. If the Tribunal determines that the consistent behaviour of a State should
lead other States to accept it as a condition of registration it will be a violation of the principle of
exclusive jurisdiction enshrined in article 91 of the Convention.

48. It is relevant to note that Saint Vincent and the Grenadines admitted on three occasions that
the Provisional Certificate had expired on 12 September 1997. On 27 November 1997, during
the proceedings on prompt release of the vessel (M/V “SAIGA” case, prompt release), Guinea
raised the issue of ownership of the Saiga. The next day, on 28 November, Counsel for the
Applicant had this to say:

The second preliminary point to address that was raised by Guinea yesterday concerns
the ownership of the vessel, M/V Saiga. From the information that we have it is very
clear that the owners, Tabona Shipping Company Limited, are indeed the owners. We
have been able to obtain this morning a provisional certificate of registration from St
Vincent and the Grenadines, which unfortunately, although dated 14 April 1997, is dated
to expire on 12 September 1997. Efforts are being made to obtain the no longer
provisional but full certificate of registration on behalf of the owners. We hope that we
will be able to get this to the Tribunal at the latest during the adjournment.
(see ITLOS/PV.97/2, page 5)

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49. The second time was the letter of the Deputy Commissioner of Maritime Affairs of
1 March 1999 and the third time was the evidence of Mr. Stewart at the oral hearings. In the face
of this one cannot seriously accept the explanation of the Deputy Commissioner.

50. The third ground on which the Judgment of the Tribunal is based is the behaviour of
Guinea. It is argued that Guinea did not make inquiries about registration or documentation
relating to it nor did it raise the issue during the prompt release proceedings in November 1997
and the provisional measures proceedings in February 1998. It is also alleged that Guinea cited
Saint Vincent and the Grenadines in the cédule de citation by which the Master was charged in
the courts of Guinea. The Tribunal is trying without explaining itself to introduce some notions
of estoppel or preclusion or acquiescence. Clearly these principles do not apply here when the
provisions of article 91 of the Convention are so clear on registration and nationality of ships.

51. When a State arrests a ship, as Guinea did, it is under no obligation to first ascertain its
nationality before taking measures. The facts of registration were with Saint Vincent and the
Grenadines. If anything it is the behaviour of Saint Vincent and the Grenadines which misled
Guinea to believe at the beginning that the Saiga was validly registered and had its nationality.
Guinea in fact raised issues which should have led Saint Vincent and the Grenadines to disclose
the fact of registration at the prompt release proceedings in November 1997. When Guinea
raised the issue of ownership Saint Vincent and the Grenadines announced to the Tribunal that
the Provisional Certificate had expired, Saint Vincent and the Grenadines promised the Tribunal
the delivery of a valid certificate on 28 November 1997. It did not honour that promise because
the certificate did not exist. It was issued on the same day. On three occasions the Tribunal
asked Saint Vincent and the Grenadines to produce a deletion certificate without success. If it is
a question of bad faith it is on the side of Saint Vincent and the Grenadines and it is utterly
surprising for the Tribunal to pin this on Guinea. Clearly this is not a case of estoppel,
preclusion or acquiescence.

52. The fourth ground on which the Tribunal has relied is the need to go into the merits in order
to achieve justice. The Tribunal has given absolutely no explanation as to what are the particular
circumstances of this case which have made it so important that the Tribunal must go to the
merits. It would appear, however, that this is the main ground on which the majority have based
their decision. No one can dispute the importance of the issues involved in this case. But
important issues arise in all manner of cases and they cannot be a basis for a court or tribunal to
decide that procedural issues are less important. In fact it is dangerous for a tribunal to brush
aside important issues of procedure simply because it feels it has to deal with the merits. It is
even more serious when the Tribunal does not explain the justification. It could lead to arbitrary
decisions.

53. But my main problem with the Judgment is the manner by which the Tribunal has reached
its decision. The Tribunal received sufficient documentary evidence which should have been
evaluated in order to come to the proper conclusion. The Tribunal had before it the Merchant
Shipping Act 1982, which properly responds to the requirement in article 91 that “[e]very State
shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its
territory, and for the right to fly its flag”. It had before it the documents which are required
under article 91. There was the Provisional Certificate, which clearly stated the date of expiry,

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12 September 1997. There was also an extract from the Register of Ships, which showed again
the expiry date of the provisional registration to be 12 September 1997. There was also the
ordinary Certificate of Registration, which showed that permanent registration took place on 12
November 1997.

54. In addition, the Tribunal had before it the official brochure of the Government of Saint
Vincent and the Grenadines explaining generally the registration procedure. The Tribunal, in
formal communication by letter and formal meetings, requested documentation relevant to the
Merchant Shipping Act 1982, the deletion certificate in particular. The parties addressed this
issue sufficiently in the written proceedings and, with the indications of the Tribunal, they
addressed the issue of registration very extensively.

55. All this evidence is on record but the Tribunal has not made an evaluation. It has instead
relied mainly on the behaviour of the parties and the need to deal with the merits. There is
absolutely no evidence on these issues on the record.

56. It is a cardinal principle of law that a person should not be judged without being given the
opportunity to be heard. I believe the Tribunal has based its decision mainly on issues on which
the parties were not given the opportunity to be heard. The Tribunal did not request the parties
to address it on the issues of the behaviour of Saint Vincent and the Grenadines and the
behaviour of Guinea as an issue of relevance. Nor did the Tribunal request the parties to address
it on the importance of dealing with the merits. The parties were requested to address the
Tribunal on a number of issues, sometimes with clear insistence, but in the end the Tribunal has
not attached the importance that was expected on those issues. I have explained one of them in
some detail; the question of the deletion of the Saiga from the Maltese Register. By taking a
different approach in reaching its decision the Tribunal did in a way mislead the parties. The
parties were led by the Tribunal to produce certain evidence and argue certain points, but in the
end the Tribunal has not considered that evidence. It has relied on something different.

57. The Tribunal has used its discretion and power to consider evidence which was not
submitted before it. In my opinion the Tribunal is showing a tendency of being more conscious
of its power than the need to act with fairness. In my Separate Opinion during the provisional
measures stage of this case I had cautioned on the arbitrary use of the Tribunal’s discretion. That
caution has not been taken account of.

58. Paragraph 71 of the Judgment reads:

The Tribunal recalls that, in its Judgment of 4 December 1997 and in its Order of
11 March 1998, the Saiga is described as a ship flying the flag of Saint Vincent and the
Grenadines.

The majority has adopted this paragraph as part of its reasoning. Although the Judgment gives
no explanation whatever for this statement, it is plain that what the majority is trying to imply is
that the issue of nationality had been decided by the Tribunal in its Judgment of 4 December
1997 and the Order of 11 March 1998. In other words the majority holds the issue is res
judicata. This is not true and it is grossly misleading. As Vice-President Wolfrum has stated in

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his Separate Opinion, the issue of nationality had not been raised at that time. In any case the
Tribunal had stated clearly that that issue was not relevant in the prompt release case. Saint
Vincent and the Grenadines did not raise it in these proceedings nor did the Tribunal require the
parties to address it. In any case counsel for Saint Vincent had misled the Tribunal as I have
shown in paragraph 51 above. It is utterly wrong to introduce the notion of res judicata without
explanation, and especially when there is no ground in doing so.

59. I also differ with the Judgment of the Tribunal on the issue of non-exhaustion of local
remedies. The first ground on which the Tribunal has based its conclusion is that the claims of
Saint Vincent and the Grenadines concern direct violations of the right of the State. The
Tribunal has absolutely made no attempt to examine whether these claims have been
substantiated. The claims have been taken at face value without the evaluation of the evidence.
To quote paragraphs 96 and 97 of the Judgment:

96. It follows that the question whether local remedies must be exhausted is answered
by international law. The Tribunal must, therefore, refer to international law in order to
ascertain the requirements for the application of this rule and to determine whether or not
those requirements are satisfied in the present case.

97. The Tribunal considers that in this case the rights which Saint Vincent and the
Grenadines claims have been violated by Guinea are all rights that belong to Saint
Vincent and the Grenadines under the Convention (articles 33, 56, 58, 111 and 292) or
under international law. The rights claimed by Saint Vincent and the Grenadines are
listed in its submissions and may be enumerated as follows:

(a) the right of freedom of navigation and other internationally lawful uses of the seas;

(b) the right not to be subjected to the customs and contraband laws of Guinea;

(c) the right not to be subjected to unlawful hot pursuit;

(d) the right to obtain prompt compliance with the Judgment of the Tribunal of
4 December 1997;

(e) the right not to be cited before the criminal courts of Guinea.

60. The Tribunal, therefore, rejects Guinea’s objection on the ground that the claims of Saint
Vincent and the Grenadines concern direct violations of the right of the State. It will be noted
that the Tribunal has made its decision on the basis of the claims of Saint Vincent and the
Grenadines. It has not even made a finding whether these claims were founded. In other words
the Tribunal has made a decision without evaluating the evidence.

61. I have read the Separate Opinion of Vice-President Wolfrum and Judge Rao and I largely
share their reasoning and I also share their conclusions on this point. The facts of this case show
that the rights which could have been violated are rights of the ship embodied in article 111,
paragraph 8, of the Convention. The rights of States are referred to in article 58 and elaborated

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in article 87 of the Convention. The arguments of Saint Vincent and the Grenadines on this point
were not convincing. The award of damages in paragraph 175 and the decision in paragraphs
176 and 177 clearly demonstrate that this is a case of diplomatic protection and not of direct
injury to Saint Vincent and the Grenadines and therefore the rule on the exhaustion of local
remedies should apply.

62. The Tribunal has also rejected the objection on the ground that there was no jurisdictional
connection between the State of Guinea and the Saiga. The reason that the Tribunal has given is
that the laws that Guinea applied were incompatible with the Convention, particularly articles 56
and 58.

63. Throughout the proceedings Saint Vincent and the Grenadines argued that the laws of
Guinea could not apply to the Saiga. In particular Saint Vincent and the Grenadines laid
emphasis on the non-applicability of the customs laws of Guinea in the exclusive economic zone
(see Memorial, paragraphs 106-113; Reply, paragraphs 122-125; ITLOS/PV.99/2, pages 4-9;
ITLOS/PV.99/16; ITLOS/PV.99/7, pages 4-14).

64. On the other hand Guinea argued that its laws, including customs laws, apply to the
exclusive economic zone in order to protect public interest in accordance with rules of
international law not incompatible with the Convention (article 58, paragraph 3). Guinea argued
that the measures were taken to fight contraband (smuggling) (see Counter-Memorial,
paragraphs 109-115; Rejoinder, paragraphs 92-103; ITLOS/PV.99/18, pages 4-5, 16-20).

65. The Tribunal has accepted the argument of Saint Vincent and the Grenadines and in doing
so it has laid emphasis on the point that the Saiga did not import gas oil into the territory of
Guinea. The facts of the case however point in a different direction.

66. Guinea has maintained throughout the proceedings that its laws and measures were
intended to protect public interest by fighting smuggling. Indeed, Counsel for Saint Vincent and
the Grenadines conceded that Guinea had used the word “smugglers” sixteen times in the
proceedings (see ITLOS/PV.99/16, page 9). Guinea maintained the same position in the prompt
release proceedings (M/V “SAIGA” case). The Judgment of the Tribunal has, however, omitted
mention of the evidence and arguments on smuggling along the West Coast of Africa.

67. The laws of Guinea which are relevant in this connection are:

1. L/94/007/CTRN of 15 March 1994;

2. The Merchant Marine Code;
3. The Customs Code;
4. The Penal Code.

68. Of all the laws of Guinea which have been submitted in this case the governing law was
L/94/007/CTRN. In paragraph 38 of the Judgment the Tribunal has acknowledged that the
Master of the Saiga was convicted under L/94/007/CTRN.

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69. The Tribunal in its reasoning and finding in paragraphs 110–136 of the Judgment has based
itself on the term “importation” and as a result it has characterised L/94/007/CTRN as a customs
law. Following that reasoning the Tribunal has reached the conclusion that the application of
customs laws in the exclusive economic zone is not compatible with the Convention.

70. The law, however, deals not only with importation but also distribution, storage and selling of
fuel. The Tribunal has selected only the word import from this law, as Saint Vincent and the
Grenadines did, and based all its arguments on that word or term. In other words the Tribunal has
adopted the argument of Saint Vincent and the Grenadines for its reasoning and has chosen to
completely keep silent on the arguments of Guinea. Secondly, the Tribunal has for unexplained
reason characterised this law as a customs law of general application whereas it is quite clear it is a
law which is specifically intended to deal with smuggling by fishing vessels licensed by Guinea to
operate in the exclusive economic zone of Guinea (see Counter-Memorial, Annex16; Reply, Annex
18).

71. The title of the law is not “customs” but “the fight against fraud”. The title of the law reads:
“Law no. L/94/007/CTRN of March 15th 1994 concerning the fight against fraud covering the
import, purchase and sale of fuel in the Republic of Guinea”.

72. A law does not become a customs law purely because it includes customs provisions; in as
much as a law does not become a penal or criminal law simply because it includes criminal
offences. The Fishing Code of Guinea, which was submitted to the Tribunal, has provisions on
fiscal matters and criminal offences. That does not make it a taxation law or a criminal law. It
remains a law to regulate fishing and in doing so it is necessary to include fiscal and criminal
offences provisions. Article 33 of the Convention mentions customs and fiscal laws among other
laws. That does not make it an article dealing with customs laws only. It is a provision intended to
protect public interest in the contiguous zone. The purpose of L/94/007/CTRN was to fight
smuggling of fuel into Guinea. The use of customs law was primarily intended to fight smuggling,
which is an offence which affects the fiscal interests of a State.

73. The seriousness of smuggling along the coast of Guinea and the coast of West Africa
generally was adequately given in evidence during both the prompt release (M/V “SAIGA” case)
and these proceedings. The clearest evidence was, ironically, given by Saint Vincent and the
Grenadines, through Mr. Marc Vervaet. He was one of the principal witnesses of Saint Vincent and
the Grenadines and this is part of what he said:

I am the regional manager of the ADDAX and ORYX Group (“AOG”) responsible for the
area covering the western coast of Africa from Morocco down to Sierra Leone. I am also in
charge of ORYX Senegal S. A. (“ORYX”), a company afflicted to AOG. I have been based
in Dakar in these roles since 1990.
…

Our experience over the recent past is that Guinea has a different regime than the other
jurisdiction in the area. I cannot recall precisely where I first heard that the Guinea
authorities acted illegally but for some time it has been suggested that navy patrol boats
have demanded money or stores from tankers and fishing trawlers unlucky enough to get in

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their path. Initially, and without any direct experience or specific details, I was of the view
that the navy vessels were simply taking what could be described as “undue advantage” of
local regulations (for example if they found a fishing trawler without an appropriate
licence). Accordingly, I was not unduly concerned about the safety of our vessels operating
in the area.
…

The smuggling of petroleum products into the territory of Guinea has long been a thorn
in the eye of World Bank Officials offering cheap loans but to see government revenues
slipping away. Individuals, foreigners or nationals alike, enriched themselves over the
years cashing in huge margins on fuels they sold onshore.

The system was quite easy: a tanker or converted fishing trawler was stationed in front of
the port of Conakry, the capital city of Guinea, containing stocks of gasoil, the most
popular fuel in the country, and supplying all sizes of fishing boats and canoes with 200
litres drums of gasoil. These drums were then transported to the shore and sold well
below the market price but with profit margins of 100% to 200%. The secret of the
system was that this interesting profit had to be shared with the customs and navy
officers who authorised and participated in this official smuggling ring.

The individuals who unwillingly developed the idea were German barge owners who
transported gasoil from the port by the river upcountry to end users like mining
companies. Though legal those days, since mining companies were exonerated on excise
taxes and duties, consumption steadily increased because of demand for cheaper fuel
available through the absence of customs control, on the contrary, with the help of those
same officers, a system came into place until for one or other reason, the Germans were
ordered to pull out.

Nevertheless, it didn't take long until resident foreigners was a lucrative and available
market and with the military and customs officers short in money, corruption flourishing
at that time, profit sharing for privileges was a common practice. Personal favours given
by higher authorities in a country like Guinea short in money but rich in resources has
always been a popular sport and official at higher levels were all involved in all kinds of
trafficking.

The next distributor for the coastline was an Italian with Greek connections
(Mr. “Olivier”), owner of an old Polish trawler, its holds converted into gasoil tanks and
not much later when things were flourishing, a second converted trawler was positioned
on the roads of Conakry port. The successful distribution of gasoil even made him
collect all existing empty drums to satisfy the demand and at a rhythm of 600,000 litres
per month, he continued so for about two years until another petroleum pirate, a Greek
named Dimoulas came up with an even bigger ship called the Africa causing a rivalry
between the two, fighting for the favour of the military and customs officers who shared
in the profit. It didn't take long before the Italian had to back off and leave the market to
the Greek who was better organised and also started providing the fishing fleet with fuel
in large quantities.

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 As an experienced smuggler, he found his gasoil on the Nigerian market, gasoil reserved
for the local Nigerian fishing fleet paid cheap local currency and smuggled out to
Guinea.

But under pressure from the World Bank and after a new government was installed in
1995, one of the conditions imposed to benefit from World Bank loans, a crackdown on
this traffic started under the leadership of the Customs and Navy.

At once, the smuggling was sharply reduced with the arrest of the AFRICA who was
released after long negotiations with the customs department ending with confiscation of
remaining cargo and a cash payment as is usual practice.

74. Incidentally the M/V Africa seems also to have Kingstown as the home port. In a
document submitted to the Tribunal by Saint Vincent and the Grenadines during the prompt
release case it was stated as follows:

[Translation]

The SAIGA was arrested near our territorial waters after a long hid[e] and find game
between the tanker and the customs-marine patrol boat. … Alike the other tanker
arrested, tanker AFRICA, it has the same home port Kingstown.
(see M/V “SAIGA” case, Memorial, Annex 4)

75. It is quite clear all the laws which were relied upon by Guinea had the intention of
suppressing smuggling or contraband as characterised by Guinea. The question which arises is
whether Guinea could apply these laws in the exclusive economic zone. According to the
statement of Mr. Marc Vervaet the smuggling that was done along the coast of Guinea was
mainly through fishing vessels. In order to reduce smuggling of gas oil, Guinea took steps to
prohibit the sale of gas oil to fishing vessels except through approved service stations. Fishing in
the exclusive economic zone is regulated by the coastal State. Under article 56 of the
Convention the coastal State has sovereign rights in that regard. One of the rights it has is
licensing fishing vessels. In issuing licences the coastal State can impose any conditions that are
compatible with the Convention. Guinea has argued that it has the right to do so in order to
protect her public interest, that is to safeguard public revenue. In his submission Professor
Lagoni, Counsel for Guinea, put the issue as follows:

It has to be noted that the fishing vessels supplied by the Saiga are pursuant to their
fishing licence obliged to purchase oil only from approved service stations. This
obligation enabled the Guinean Customs authorities to make sure that only such gas oil is
sold to fishing vessels for which customs duties and taxes have been levied.
…
I would like to underscore in this context again that the Republic of Guinea has
prohibited that unauthorized sale of fuel in article 1 of its Law no.7 CTRN 1994. The
heading of the law expressly mentions the word “sale” (“vente”) which is included in the
term “distribution” (“la distribution”) in article 1.

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 This prohibition applies to the Republic of Guinea, as it is clearly stated in article 1 and
in the heading of that law. The term “Republic of Guinea,” as it is conceived in this law,
is not confined to the Guinean territory. It also includes the customs radius. This is the
clear and consistent practice of the Guinean administration and the Guinean courts. In
short, the Republic of Guinea prohibits the unauthorized sale of fuel, i.e. offshore
bunkering, in its customs radius. As I have submitted earlier, this prohibition does not
relate to the bunkering of ships in transit to other countries but to all fishing vessels with
Guinean licences.

It is accordingly of no relevance to the question of whether or not Guinea could and did
apply its customs law within its customs radius to the Saiga that the ship itself has not
entered the Guinean territorial sea. Moreover, the bunkering operation of the ship in the
Guinean contiguous zone is also of no relevance in this context, although it may be
relevant to the application of the criminal law. The relevant area here is the customs
radius. This is a functional zone established by Guinean customs law within the realm of
the contiguous zone and a part of the Guinean exclusive economic zone. One can
describe it as a limited customs protection zone based on the principles of customary
international law which are included in the exclusive economic zone but which are not
part of the territory of Guinea.

Against the submission of Dr. Plender in his speech of 18 March 1999 before this
Tribunal, the Republic of Guinea in no way claims to exercise territorial jurisdiction in
this zone. Dr. Plender inferred this, inter alia, from the fact that Lt. Sow spoke several
times in his examination as a witness about “our waters” and that other Guinean
witnesses apparently used similar descriptions as well. I simply cannot regard this use of
circumscription as a national claim to territorial jurisdiction, and I venture to doubt
whether the eminent Queen’s Counsel seriously does. Especially in the case of Lt. Sow
who, upon examination, knew quite well the legal difference between the zones of
national jurisdiction, this is obviously a matter of the convenience of language.

More important, however, might be the fact that other States have not as yet established a
customs radius or a similar zone, but this does not mean that it would be prohibited
forever. If the practice of States prevailing at any time excluded the development of the
law, we would still have the classical order of the ocean which has existed since Hugo
Grotius until 1958. There would be no exclusive economic zone.

76. The question must be raised whether it is prohibited under the Convention to include customs
matters in the licensing of fishing vessels. In my opinion it is not. Under article 62 of the
Convention coastal States make laws and regulations to “licenc[e] fishermen, fishing vessels and …
remuneration, which, in the case of developing coastal States, may consist of adequate
compensation in the field of financing, equipment and technology relating to the fishing industry”
(article 62, paragraph 4(a)). This shows that it is not prohibited to make laws and regulations
relating to earning revenue in the exclusive economic zone. More relevant however is article 62,
paragraph 4(h), which concerns “the landing of all or any part of the catch by such vessels in the
ports of the coastal State”. If a catch is landed in the port of a State it is certainly going to be subject

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to tax laws, including customs laws. In my opinion, therefore, it is not incompatible for a State to
make laws to earn revenue. If its source of revenue is threatened, as Guinea’s was, by smuggling
through fishing vessels, it has the right to establish the necessary laws and regulations to deal with
the situation.

77. Agreements made between the European Community and coastal States normally include
financial provisions. For example, the agreement concluded between Guinea and the European
Community has provisions to that effect (see Memorial, Annex 9). Under that agreement there is
financial compensation amounting to ECU 2,450,000, ECU 350,000 for surveillance bodies,
ECU 300,000 for institutional aid and ECU 250,000 for non-industrial fishing. The total from
this one agreement is ECU 3,500,000.

78. In his statement to the Tribunal on 20 March 1999, Mr. Togba, the Guinean Minister of
Justice, stated that the total of levies and taxes from fuel for 1997 was 81,705,308,207 Guinean
francs and for the first six months of 1998 the figure was 50,172,815,249 (equivalent to
approximately 81.7 and 50.2 million dollars respectively). For a developing country like Guinea
it is a very substantial amount to its national budget and it is worthwhile taking measures to
safeguard this revenue.

79. As explained by Mr. Vervaet, when the tanker Africa was arrested in 1995 “smuggling was
sharply reduced”. It should be remembered that the year 1995 is when L/94/007/CTRN became
really effective. Guinea has shown that after the Saiga was arrested in 1997 smuggling was once
more sharply reduced. In the first ten days of December 1997, Guinea collected 23 billion francs
(about 23 million dollars) from only two oil companies, Shell and Elf. That amount was more
than had been collected in the previous ten days from all the oil companies operating in Guinea
(see Counter-Memorial, Annex 16).

80. On the whole we are talking of substantial amounts of revenue derived from activities
undertaken in the exclusive economic zone of Guinea, including taxation on fuel used by the
many fishing vessels licensed by Guinea. That definitely constitutes a public interest for Guinea,
indeed for any developing country. However, in rejecting Guinea’s argument, the Tribunal says
in paragraph 131 of the Judgment:

According to article 58, paragraph 3, of the Convention, the “other rules of international
law” which a coastal State is entitled to apply in the exclusive economic zone are those
which are not incompatible with Part V of the Convention. In the view of the Tribunal,
recourse to the principle of “public interest”, as invoked by Guinea, would entitle a coastal
State to prohibit any activities in the exclusive economic zone which it decides to
characterize as activities which affect its economic “public interest” or entail “fiscal losses”
for it. This would curtail the rights of other States in the exclusive economic zone. The
Tribunal is satisfied that this would be incompatible with the provisions of articles 56 and
58 of the Convention regarding the rights of the coastal State in the exclusive economic
zone.

81. The philosophy underlying the concept of the exclusive economic zone is, as the term
implies, the economic interest of the coastal State. This is what is embodied in article 56 of the

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Convention. Certainly it cannot be argued that fiscal interests are not economic interests. The
purpose of the entire Part V of the Convention was to curtail the rights of other States in favour
of the economic and other interests of the coastal States. It was part of the compromise which
led to the restriction on the breadth of the territorial sea and the regimes of straits used for
international navigation and archipelagos (Part III, Section 2, and Part IV). For the Tribunal to
deny this is to pull the clock back to the time, as Professor Lagoni put it “we would still have the
classical order of the ocean which has existed since Hugo Grotius until 1958. There would be no
exclusive economic zone”.

82. Judge Nelson, in his Separate Opinion, has made the point that the proposals which were
made by African countries relating to control and regulations of customs and fiscal matters in the
exclusive economic zone were not accepted. He further says that it would be a “startling result
that proposals which have not been accepted by the Conference would somehow still remain like
shades waiting to be summoned, as it were, back to life if and when required”. I do not agree
with that statement. Nowhere in the preparatory work is there a decision that those proposals
were not accepted. Unlike the 1958 Conference where voting took place and proposals were
either accepted or not accepted or, to put it in plain language, were rejected, the procedure in the
Third Conference on the Law of the Sea was different. Only proposals which achieved
consensus were included in the Convention. A proposal having not been included in the
compromise does not mean it is buried forever and would not see the light of day in future as
Judge Nelson seems to imply. In 1959 the proposal on the 12 nautical miles territorial sea was
rejected by vote but just over two decades later State practice forced it into conventional law.
Anyway this was a digression. My point is that in this particular case we are dealing with a law
the intention of which is to fight smuggling, not to extend the power of a coastal State to
generally apply customs law in the exclusive economic zone.

83. Guinea claims the right to impose regulations under customs law. She makes this claim
under article 58, paragraph 3, which states:

In exercising their rights and performing their duties under this convention in the
exclusive economic zone, States shall have due regard to the rights and duties of the
coastal State and shall comply with the laws and regulations adopted by the coastal State
in accordance with the provisions of this Convention and other rules of international law
in so far as they are not incompatible with this Part. (emphasis added)

84. “This Part” means the part of the Convention which deals with the exclusive economic
zone. This zone was created in order to protect the economic interests of the coastal States. Any
other State undertaking any activity in the exclusive economic zone is required to pay due regard
to the economic interests of the coastal State. Therefore fishing vessels licensed by the coastal
State are required to pay due regard to the economic interests of the State which has given them
licences.

85. The practice of States, which later developed into the rule that is enshrined in article 33 of
the Convention on the contiguous zone, was based on the protection of public interest, including
customs and fiscal interests. Indeed the prevention of smuggling was one of the main reasons for

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States to claim a contiguous zone. The same reason should very well apply in the exclusive
economic zone, where now the economic interests of the coastal State are clearly recognised.

86. The suppression of smuggling is particularly important in protecting the economic interests
of a coastal State. Guinea enacted a law to combat smuggling not only on its own initiative but
also with the encouragement of the World Bank. Tankers can be conduits of smuggling and there
is evidence in the present case to prove that. On the evidence submitted, the Africa was the main
conduit of smuggling before L/94/007/CTRN was enacted. It continued to do so after the law
was established and was arrested and punished. When these proceedings had started the Africa
had again been arrested for a similar offence. The bunkering activities of the Saiga could also
encourage smuggling. For example between 24 October and 27 October it supplied several
vessels with fuel amounting to between 45 and 100 metric tons. The Flipper for example was
supplied 100,555 metric tons of gas oil off the coast of Guinea-Bissau just north of Guinea. That
was a lot of fuel for a vessel fishing at a distance of twenty or less nautical miles from the coast.
(During the oral hearing Lt. Sow was asked to show on the map where fishing activities are
located along the coast of Guinea and he indicated an area close to the coast and within the
contiguous zone. This is confirmed by the location of the pre-arranged bunkering points of the
Saiga.)

87. When the Saiga was forced to flee the waters under the jurisdiction of Guinea, it was
instructed to wait for the Greek vessels at a point in Sierra Leone waters south of Guinea. These
so called Greek vessels were near the northern part of Guinea, more than 100 nautical miles
away. It would have been easy and cheaper to refuel along the coast but they were willing to
travel all that distance to be supplied with fuel. In the circumstances of the history of smuggling
in this area it is not unreasonable to believe Guinea that these fishing vessels were engaged in
smuggling and the Saiga was the deliberate and willing conduit.

88. Saint Vincent and the Grenadines also argued that Guinea could not apply its custom laws
in the customs radius. The Tribunal has accepted the argument. I have already argued that
L/94/007/CTRN was intended to fight smuggling. For that purpose the customs radius is
irrelevant to me. The relevant area is the exclusive economic zone. The relevancy of the
customs radius was in terms of operational matters. The smuggling that Guinea intended to
prevent related to the activities of fishing vessels. As was shown on the map the fishing area is
close to the coast and Guinea does not have a large naval fleet, nor does it have fast patrol boats
equipped to operate far from the coast. In the light of that the customs radius, as an operational
zone, becomes relevant. Otherwise legally Guinea has the right to apply the law to fishing
vessels which have been licensed to operate in the entire exclusive economic zone.

89. Saint Vincent and the Grenadines also argued that the Guinean laws could not be binding to
her because they had not been communicated to the Secretary-General of the United Nations.
The Convention, however, does not require States to communicate laws to the Secretary-General
of the United Nations. In certain cases the Convention requires States to give notice of their laws
and regulations. One such provision in the Convention is article 62, paragraph 5, which requires
States to give due notice of conservation and management laws and regulations applicable in the
exclusive economic zone. Giving notice includes the publication of the laws and regulations and
this was done by Guinea through the Journal Officiel de la République de Guinée. In fact the

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laws submitted as evidence to the Tribunal came as part of the Official Journal. In any case it
was quite clear from the evidence that the owners, managers and the operators of the ship had
knowledge of these laws.

90. From the evidence which was submitted it was clear that Saint Vincent and the Grenadines
knew the laws of Guinea concerning supplying fishing vessels with gas oil in the exclusive
economic zone of that country. Mr. Marc Vervaet has been connected with vessels of the
operators since 1993. He has given a clear account of what was taking place along the coast of
Guinea. He has been in charge of three vessels hired by the operators during this time, the Dior,
the Alfa-I and the Saiga. He has admitted in his evidence that Guinea had a different regime
from the other countries in the region. He has given a detailed account of the vessels, which
have been arrested by Guinea since 1995. This is the period after Law L/94/007/CRTN was
enacted by Guinea. At around the time the Saiga was arrested the Africa was also arrested for
the second or third time. Mr. Vervaet has stated that the arrest of the Africa led to reduction in
smuggling. (It is actually baffling why Saint Vincent and the Grenadines has taken up the case
of the Saiga and not the case of the Africa.)

91. When all the evidence is taken together it is quite clear that Guinea could properly apply
customs and contraband laws against the Saiga when it undertook bunkering activities in the
exclusive economic zone.

92. Another argument advanced by Saint Vincent and the Grenadines was that the law of
Guinea could not be applicable because the Saiga was arrested outside Guinea waters. This
argument cannot be accepted because the events, which led to hot pursuit, took place in the
exclusive economic zone of Guinea.

93. The Saiga left Dakar, Senegal, on 24 October 1997 laden with approximately 5,400 metric
tons of gas oil. The purpose of the voyage of the Saiga was to sell gas oil to mainly fishing
vessels at pre-arranged locations off the coast of West Africa. On the day it left Dakar it reached
the first pre-arranged location off the coast of Guinea-Bissau and supplied gas oil to three fishing
vessels. On 27 October 1997 it reached another pre-arranged location at the point 10º25'03 N
and 15º42'06 W near the Guinean island of Alcatraz which lies about 22 nautical miles from the
coast of Guinea. This point lies in the contiguous zone and exclusive economic zone of Guinea.
At that location at between 0400 and 1400 hours it supplied gas oil to fishing vessels licensed by
Guinea to operate in waters under Guinea's jurisdiction. These vessels were the Giuseppe Primo,
the Kriti and the Eleni G. While it was at this location it was detected by Guinea authorities who
decided to dispatch a navy patrol boat towards the location.

94. The Saiga was supposed to move towards another pre-arranged location which is also
within the exclusive economic zone of Guinea off the northern part of the coast. The owners of
the cargo, who were actually giving instructions to the Master of the ship, gave instructions that
the next pre-arranged position should be abandoned and the ship should proceed to a point which
is in waters under the jurisdiction of Sierra Leone. The reason given for abandoning the pre-
arranged location was that Guinea was sending out patrol boats. The Master was to keep at least
one hundred nautical miles off the coast of Guinea and to keep a lookout on the radar day and
night for fast navy vessels. Following the instructions the Saiga moved in a southerly direction

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until it reached the point in Sierra Leone waters. It had been instructed to wait at that point for
vessels which were at the time off the northern coast of Guinea near the first two pre-arranged
locations. At 0800 the Saiga was at a point 09º00'01 N and 14º58'58 W waiting for the vessels to
which it was to supply gas oil. At about 0900 it was arrested by Guinean navy boats (see
Memorial, paragraph 29, Annex 16, pp. 236, 240, 247, 249, 250; Counter-Memorial, paragraphs
15, 16).

95. In the context of the facts above there was jurisdictional connection between the Saiga and
Guinea. The purpose of the voyage of the Saiga was to sell gas oil. This was done by bunkering
fishing vessels along the coast of West Africa. For that purpose locations were pre-arranged and
two of such locations on this particular voyage were in the exclusive economic zone of Guinea.
The Saiga purposely and willingly proceeded to those locations. It accomplished its purpose at
the first location but had to abandon the second location and flee because it was informed of the
approach of the naval vessels of Guinea. The successful flight of the Saiga would simply make
the hot pursuit and arrest illegal in terms of article 111 of the Convention. But the events which
led to the arrest started in the exclusive economic zone of Guinea where the Saiga had entered
willingly as part of its planned mission.

96. The last argument advanced by Saint Vincent and the Grenadines against the objection of
Guinea relates to what is termed as absence or ineffectiveness of local remedies. The Tribunal
has found it unnecessary to make a finding on this argument. In my opinion, if the Tribunal had
proceeded to determine the issue, the argument of Saint Vincent and the Grenadines would fail.
The Tribunal has accepted that article 22 of the Draft Articles on State Responsibility adopted by
the International Law Commission is reflecting international law on this issue (see paragraph 97
of the Judgment). I also accept that view.

97. Under article 22 of the Draft Articles on State Responsibility, Saint Vincent and the
Grenadines was obliged to take the initiative. In paragraph 2 of the commentary the
International Law Commission says:

To be able to conclude that there is a breach of an international obligation “of result”

concerning the treatment of individuals, and particularly foreign individuals, it is first
necessary to establish that the individuals who consider themselves injured through being
placed in a situation incompatible with the internationally required result have not
succeeded, even after exhausting all the remedies available to them at the internal level,
in getting the situation duly rectified; for it is only if these remedies fail that the result
sought by the international obligation will become definitely unattainable by reason of
the act of the State. If, for various reasons, individuals who should and could set the
necessary machinery in motion neglect to do so, the State cannot normally be blamed for
having failed to take the initiative to obliterate the concrete situation created by initial
conduct attributable to it and militating against the achievement of the internationally
required result – provided, of course, the State itself is not responsible for the inaction of
the individuals.

98. The Saiga was arrested on 28 October 1997. Saint Vincent and the Grenadines did not
submit evidence at all that it took initiative to obtain remedies in Guinea. Nor did the owners of

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the ship, the owners of the oil, the managers of the ship, the operators or the crew. They cannot
therefore claim that there were no remedies when they did nothing to find out.

99. The argument of Saint Vincent and the Grenadines is based on the conviction of the Master
of the ship. But that was not initiated by Saint Vincent and the Grenadines. In any case it cannot
be claimed that the Master represented Saint Vincent and the Grenadines, the owner of the ship
and the rest.

100. The argument that the remedies were ineffective is based on the action taken in the
Guinean courts. The evidence submitted was the declaration of Maitre Bangoura (see Memorial,
Annex 26). Examination of that declaration reveals that it deals with legal issues appropriate to
the Supreme Court of Guinea. The Tribunal would not be called upon to act as the Supreme
Court of Guinea.

101. The evidence submitted by Saint Vincent and the Grenadines also revealed that other
vessels have been subject to the same treatment in the recent past as was taken against the Saiga.
These vessels include the Africa, which has Saint Vincent and the Grenadines as the flag State.
All those cases have been settled locally and the vessels have continued to operate in the
exclusive economic zone of Guinea. As the Minister of Justice of Guinea, Mr. Togba, pointed
out, the Guinean law is similar to the laws of other countries in the region, for example Senegal
(see ITLOS/PV.99/18, page 5). The Tribunal would not accept argument without an attempt to
find out the facts.

102. Having reached the conclusion that Saint Vincent and the Grenadines was not the flag
State at the time of the arrest of the Saiga and that local remedies were not exhausted, there is no
need for me to examine the issues on the merits.

103. This opinion has been longer than would have been necessary because as I said at the
beginning the Judgment lacks objectivity in the summary of the evidence and arguments of the
parties. I have, therefore, been obliged to quote extensively from the proceedings in order to
bring out some of the evidence and arguments which I believe should have been taken into
account in reaching the right conclusions.

104. President Mensah has made the point in his Separate Opinion that if Saint Vincent and
the Grenadines were denied standing to bring the dispute to the Tribunal it would completely
deprive the persons involved in the operation of the Saiga any redress in respect of injury,
damage and other losses suffered by them. I agree that the issue of redress was extremely
important. But I do not believe a decision that Saint Vincent and the Grenadines was not the flag
State would have prevented consideration of the issue of redress. The Saiga still had the
protection of the State of nationality of the owner and it could still bring action to this Tribunal.
On this point I agree with the reasoning of Judge Ndiaye in his Dissenting Opinion and share his
conclusions. Neither would a decision that local remedies had to be exhausted prevent for all
time consideration of the issue of redress. At most, there would only be a short delay.

105. More disturbing however is the lack of acknowledgement by the Tribunal of the problem
of smuggling in West Africa. While it is important to do justice in addressing redress in terms of

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compensation to injured parties, it is also important to insure that peace and security is
maintained. The primary purpose of the 1982 Convention on the Law of the Sea is to promote
and maintain order in the oceans. Without order there will be no peace and without peace there
would be no justice. Smuggling disturbs peace and security. In the face of clear evidence of
smuggling along the coast of Guinea, it was not appropriate for the Tribunal not to say anything
about the matter. It is more so when one of the vessels flying the flag of Saint Vincent, the
Africa, was shown conclusively to have been a conduit in this smuggling.

106. President Mensah has again made the point of giving a word of caution to Saint Vincent
and the Grenadines and other registry States on their laws and practices. I do not believe that
that word of caution was well placed in this particular case. It would have been more appropriate
to give a word of caution on the danger of smuggling that may be associated with bunkering
activities in the exclusive economic zones of the coastal States. For if that is not discouraged
there will be no peace along the coast of Africa. It should be hoped that the silence of the
Tribunal on the issue of smuggling will not be interpreted as a licence for unwarranted bunkering
activities which encourage smuggling.

(Signed) Joseph Sinde Warioba

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 DISSENTING OPINION OF JUDGE NDIAYE

[Translation]

(Submitted pursuant to article 30, paragraph 3, of the Statute and article 8, paragraph 4,
of the Resolution on the Internal Judicial Practice of the Tribunal.)

1. Having, to my regret, been unable to concur with the Judgment of the Tribunal, I felt it
was my duty to state my dissenting opinion.

In my view, the submission of the Government of Guinea to the effect that the
Application of Saint Vincent and the Grenadines was inadmissible due to the fact that the
Saiga was not duly registered should have been sustained by the Tribunal. Similarly, the
question with regard to jurisdiction and the question relating to the objections raised by Saint
Vincent and the Grenadines to the challenges to admissibility should have been dealt with
otherwise, for the following reasons:

I. JURISDICTION

2. The present proceedings between Saint Vincent and the Grenadines and the Republic of
Guinea were introduced by notification of a special agreement. It is by the Exchange of
Letters of 20 February 1998 (“the 1998 Agreement”) that Saint Vincent and the Grenadines
and Guinea agreed to submit the dispute between them relating to the vessel Saiga to the
jurisdiction of the International Tribunal for the Law of the Sea (Hamburg) and to transfer to
the Tribunal the arbitration proceedings initiated by Saint Vincent and the Grenadines by its
notification of 22 December 1997.

3. The 1998 Agreement provides that the dispute shall be submitted to the International
Tribunal on the following terms:

1. The dispute shall be deemed to have been submitted to the International Tribunal
for the Law of the Sea on the 22 December 1997, the date of the Notification by
St. Vincent and the Grenadines;

2. The written and oral proceedings before the International Tribunal for the Law of
the Sea shall comprise a single phase dealing with all aspects of the merits (including
damages and costs) and the objection as to jurisdiction raised in the Government of
Guinea's Statement of Response dated 30 January 1998;

3. The written and oral proceedings shall follow the timetable set out in the Annex
hereto;

4. The International Tribunal for the Law of the Sea shall address all claims for
damages and costs referred to in paragraph 24 of the Notification of
22 December 1997 and shall be entitled to make an award on the legal and other costs
incurred by the successful party in the proceedings before the International Tribunal;

5. The Request for the Prescription of Provisional Measures submitted to the

International Tribunal for the Law of the Sea by St. Vincent and the Grenadines on

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 13 January 1998, the Statement of Response of the Government of Guinea dated
30 January 1998, and all subsequent documentation submitted by the parties in
connection with the Request shall be considered by the Tribunal as having been
submitted under Article 290, paragraph 1, of the Convention on the Law of the Sea
and Article 89, paragraph 1, of the Rules of the Tribunal.

4. It is this Agreement which provides the basis for the jurisdiction of the Tribunal. The
dispute as to the merits is submitted to the Tribunal on behalf of Saint Vincent and the
Grenadines as Applicant and Guinea as Respondent. The parties have, in the present case,
accepted the jurisdiction of the Tribunal. They have discussed in substance all of the
questions to be presented to it. That attitude on the part of the parties would also suffice to
provide a basis for the Tribunal’s jurisdiction.

5. However, the Tribunal sought to place its jurisdiction upon another footing, an
endeavour which appears to me somewhat superfluous.

The jurisdictional act here does not differ significantly from other jurisdictional acts
and is no exception to the rule that such jurisdictional acts are, by their nature and effect,
essentially procedural rather than substantive provisions. Naturally, the 1998 Agreement
contains provisions relating to substance, due to its legislative history (the arbitral
proceedings) but it is the purview of the Tribunal to determine whether or not they exist.
There should be no misunderstanding as to a “universal principle of procedural law”
indicating that a distinction must be made between, on the one hand, the right to bring a case
before a tribunal and the tribunal’s right to take cognizance of the substance of the
application, and, on the other hand, the right in light of the purpose of the application which
the applicant must demonstrate to the satisfaction of the tribunal (see South-West Africa,
I.C.J. Reports 1966, paragraph 64).

6. Here, we are concerned only with the first two. In other words, it is only the provisions
of the 1998 Agreement by which the parties give effect to the transfer of the dispute to the
Tribunal that provide the basis for its jurisdiction.

II. ADMISSIBILITY

7. In its Counter-Memorial, Guinea raised three challenges to the admissibility of the

claims of Saint Vincent and the Grenadines. The first pertains to the nationality of the vessel
Saiga, the second to diplomatic protection of aliens, and the third to non-exhaustion of local
remedies.

8. Saint Vincent and the Grenadines, the Applicant, questions the right of Guinea, the
Respondent, to raise objections to admissibility, adducing the jurisdictional act (the
20 February 1998 Agreement) and the Rules of the Tribunal (article 97, paragraph 1).

9. According to Saint Vincent and the Grenadines the Respondent is precluded, firstly,
because paragraph 2 of the 1998 Agreement bars the raising of an objection to admissibility.
That paragraph reads as follows:

The written and oral proceedings before the International Tribunal for the Law of the
Sea shall comprise a single phase dealing with all aspects of the merits (including

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 damages and costs) and the objection as to jurisdiction raised in the Government of
Guinea's Statement of Response dated 30 January 1998.

10. The Applicant adds that, in agreeing to recognize the Tribunal’s jurisdiction to examine
“all aspects of the merits”, the parties understood that such examination should not be barred by
an objection to admissibility raised in the name of the legitimate interest of the Applicant State,
and that, in all of the correspondence between the parties and the exchanges between them over
a period of nearly four months, the Republic of Guinea never so much as hinted that Saint
Vincent and the Grenadines had not shown a legitimate interest in the vessel flying its flag.
Moreover, Saint Vincent and the Grenadines argues that the reference to “the objection as to
jurisdiction raised in the Government of Guinea's Statement of Response dated
30 January 1998” ruled out any other objection to jurisdiction or to the admissibility of the
claims, the more so in that paragraph 2 stipulates that the proceedings shall comprise “a single
phase dealing with all aspects of the merits”.

11. Guinea disagrees with that interpretation and maintains that it never waived any
objection to the admissibility of the Applicant’s claims. Guinea holds that, since the
1998 Agreement deals essentially with the jurisdiction of the Tribunal, the parties were of the
view that it was necessary expressly to mention the objections relating to issues of
jurisdiction in this Agreement which transferred the dispute to the jurisdiction of the
International Tribunal. The Respondent points out in this connection that, “interestingly
enough”, it was the opposite party who initiated the inclusion in the 1998 Agreement of the
reference to the objection to jurisdiction by the Tribunal. In support of the fact that it never
waived raising objections to the admissibility of the claims advanced by Saint Vincent,
Guinea mentions the fact that it formulated its objection concerning non-exhaustion of local
remedies, as provided for in article 295 of the United Nations Convention on the Law of the
Sea (“the Convention”) at the hearing of 24 February 1998 concerning the Request for
prescription of provisional measures, i.e., only four days after the conclusion of the
1998 Areement which - according to the opposing party - excludes the possibility of raising
such objections. During the aforementioned hearing, Saint Vincent had not made this
position known; and its counsel would certainly not have failed to do so if it had been the
intention of the parties to exclude objections to the admissibility of the claims, Guinea
maintains.

12. Paragraph 2 of the 1998 Agreement should be interpreted in the light of article 31,
paragraph 1, of the Vienna Convention on the Law of Treaties, which provides that:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its object and
purpose.

13. Saint Vincent and the Grenadines maintains that the ordinary meaning of the terms used in
paragraph 2 of the 1998 Agreement, in particular the terms

dealing with all aspects of the merits ... and the objection as to jurisdiction raised in
the Government of Guinea's Statement of Response dated ...

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as well as the object and purpose of the Agreement reveal that the parties agreed that no
objection to the admissibility of the claims presented would be raised in the present
proceeding.

14. Guinea contests that interpretation. The terms “a single phase” indicate that the procedure
on the merits should not be divided into different procedural phases. Consequently, it is clear
that the parties had envisaged procedural phases which could be separated from the proceeding
for consideration of the merits or which could lead to suspending said proceeding. Otherwise,
the use of the expression “a single phase” would have been superfluous.

15. Guinea wonders what procedural phases, if not the preliminary phase provided for in
article 97 of the Rules of the Tribunal, could have been envisaged by the inclusion of this
expression in the 1998 Agreement. The prompt release proceeding and the proceeding on the
prescription of provisional measures, like the procedural phases other than that on the merits,
had already been completed or were in the process of being completed before the Tribunal at
the time the 1998 Agreement was concluded. No preliminary proceeding, in particular none
of the preliminary proceedings provided for in article 96 of the Rules of the Tribunal, is to
take place in a procedural phase distinct from the proceeding on the merits, or else such
proceeding would be pointless in the present dispute. The necessary conclusion is that only
the preliminary procedural phase provided for in article 97 of the Rules could have been
contemplated by the terms “a single phase” in the 1998 Agreement. The Rules of the
Tribunal do not mention any other procedural phase different from the proceeding on the
merits and which could have been invoked by the parties to the present case. Indeed, the
term “merits” must be interpreted in the light of the prompt release proceeding which had
already taken place and in the light of the Request for prescription of provisional measures
which was taking place at the time the 1998 Agreement was concluded or shortly before.

16. Guinea asserts that the word “merits” must be read in contradistinction to those
procedures, which means that no distinction should be drawn between final submissions on
the merits and any objection to the admissibility of the claims. There is a close link between
objections to the admissibility of a claim and the proceeding on the merits.

17. Guinea also invokes article 31, paragraph 4, of the Vienna Convention on the Law of
Treaties, which provides that:

A special meaning shall be given to a term if it is established that the parties so

intended.

18. It is undisputed between the parties that the object and purpose of the 1998 Agreement was
to transfer the case from the jurisdiction of an arbitral tribunal to that of the International
Tribunal for the Law of the Sea. Therefore, the Respondent maintains that the argument that
Guinea excluded the possibility of raising an objection to the admissibility of the claims is
groundless.

19. Saint Vincent further contests the right of Guinea to raise objections to admissibility on
the ground that it is precluded pursuant to article 97, paragraph 1, of the Rules of the
Tribunal. That paragraph reads as follows:

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 Any objection to the jurisdiction of the Tribunal or to the admissibility of the
application, or other objection the decision upon which is requested before any
further proceedings on the merits, shall be made in writing within 90 days from the
institution of proceedings.

Under the terms of paragraph 1 of the Agreement of 20 February 1998, the parties agreed
that:

The dispute shall be deemed to have been submitted to the International Tribunal for
the Law of the Sea on the 22 December 1997, the date of the Notification by St.
Vincent and the Grenadines.

20. The 90-day period running from 22 December 1997 came to an end on 22 March 1998.
No objection to jurisdiction or to admissibility was raised during that period. According to Saint
Vincent and the Grenadines, institution of proceedings and submission of the Memorial are two
completely different things. They are governed by different sub-sections of the Rules of the
Tribunal. Sub-section 1 of Section B deals with “Institution of Proceedings”, while sub-
section 2 of that section deals with “The Written Proceedings”, including the Memorial of the
Applicant (article 60).

21. Saint Vincent also maintains that the reason advanced by the Respondent in support of
the assertion that these two distinct phases should be treated as a single phase is that, before
that date, the Respondent did not have any opportunity to state its position on the dispute.
The Applicant adds that, if Guinea had not agreed, on 20 February 1998, that the
International Tribunal would consider all aspects of the merits of the dispute, it would not
have been precluded from raising an objection to jurisdiction or to admissibility before the
submission of the Applicant’s Memorial. To the contrary, one would have expected Guinea
to raise such an objection to jurisdiction or to admissibility at that stage. The Applicant adds
that Guinea is not free to raise objections to admissibility at whatever stage it chooses.
Guinea, for its part, maintains that the words “a single phase” in paragraph 2 of the
1998 Agreement imply that the parties ruled out the possibility of availing themselves of the
procedure provided for in article 97, paragraph 1, of the Rules. In other words, the parties
agreed, in keeping with article 97 of the Rules, that objections to admissibility should be
addressed in the framework of the proceeding on the merits. The Respondent indicates that
paragraph 2 of the 1998 Agreement specifically provides for that possibility. He further
maintains that he is not precluded from raising the objection to admissibility at that stage
because it is within his discretion to decide whether or not there is cause to raise objections
upon which a decision is requested before any further proceedings on the merits.

22. Guinea argues out that the third category of objections referred to in article 97,
paragraph 1, of the Rules, namely objections “the decision upon which is requested before
any further proceedings on the merits”, does not refer only to questions such as whether the
Application, as formulated, no longer falls within the terms of the compromis, or whether the
nature of the dispute is such that it cannot be submitted to a jurisdiction such as that
suggested by the Applicant. The Respondent points out that it raised objections to the
admissibility of the proceeding instituted by Saint Vincent and the Grenadines, that is, an
objection to the admissibility of the application itself. The Respondent cites several cases
before international jurisdictions in which the States raised preliminary questions pertaining
to jurisdiction and admissibility in the Counter-Memorial, or during which such questions

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were settled after the hearing of the case on the merits. This, the Respondent says, points to
the non-exhaustive character of preliminary objections before international jurisdictions, in
the sense that, regardless of whether or not questions of jurisdiction are raised during the
phase devoted to preliminary objections, they can always be raised at a later stage, and even
by the jurisdiction ex officio. The Respondent concludes that State practice seems to have
adopted the same approach (see also Shabtai Rosenne, The Law and Practice of the
International Court, 1920-1996, Vol.II, Jurisdiction, Martinus Nijhoff Publishers, 1997,
pp. 909-915).

23. In considering the question of admissibility, the Tribunal should have relied upon the
1998 Agreement concluded between the parties to the dispute, whereby they decided to
submit the dispute to the Tribunal, and to the procedural rules which they wished to see
applied. The Tribunal’s first duty, when called upon to interpret and apply the provisions of
the 1998 Agreement, is to endeavour to give effect, according to their natural and ordinary
meaning, to those provisions viewed in their context. If the relevant words, when one gives
them their natural and ordinary meaning, have a meaning in their context, the inquiry should
stop there (Competence of the General Assembly for the Admission of a State to the United
Nations, I.C.J. Reports 1950, p. 8).

24. It should be recalled that the 1998 Agreement was concluded through the good offices
of the President of the Tribunal in order to determine the dispute-settlement procedure in this
case. Its purpose is to transfer the dispute from the jurisdiction of an arbitral tribunal (to be
constituted following the arbitral proceeding instituted by Saint Vincent and the Grenadines
on 22 December 1997 against Guinea and which was to be presided by a person appointed
by the President of the International Tribunal for the Law of the Sea; the procedure was
opened pursuant to article 287, paragraph 3, of the 1982 United Nations Convention on the
Law of the Sea) to that of the International Tribunal for the Law of the Sea, with a view to
avoiding lengthy and costly proceedings. It is therefore in that context that one must view
paragraph 2 of the 1998 Agreement about which the parties differ. It reads:

The written and oral proceedings before the International Tribunal for the Law of the
Sea shall comprise a single phase dealing with all aspects of the merits (including
damages and costs) and the objection as to jurisdiction raised in the Government of
Guinea's Statement of Response dated 30 January 1998.

25. The relevant words here with regard to the discussion on admissibility are “a single phase
dealing with all aspects of the merits (including ...”.

26. Proceedings on preliminary objections were long considered a distinct phase of the
case. It was in 1952, with regard to the Ambatielos case, that the International Court of
Justice said:

[The Court] decided that, in future, these proceedings would be treated as an incident
of proceedings on the merits and not as a separate case. (I.C.J. Yearbook 1952-1953,
p. 89)

27. In 1972, that distinction was embodied in article 79, paragraph 1, of the Rules of the I.C.J.
That provision is reflected in article 97, paragraph 1, of the Rules of the Tribunal.

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 In this regard, and bearing in mind the words “a single phase” and “including”, the
Tribunal should interpret paragraph 2 of the 1998 Agreement as meaning that the parties wish
the objections to admissibility to be joined to the merits because

a single phase dealing with all aspects of the merits (including damages and costs)
and the objection as to jurisdiction

is the joinder to the merits of the preliminary objections.

Indeed, article 97, paragraph 7, which reflects article 79, paragraph 8, of the Rules of
the International Court of Justice, embodies this approach recognizing practice. It reads:

The Tribunal shall give effect to any agreement between the parties that an objection
submitted under paragraph 1 be heard and determined within the framework of the
merits.

28. Joinder to the merits would also be the result of an examination of the nature of the
objections to admissibility in question. They are in fact so closely related to the merits or to
points of fact or of law bearing upon the merits that one could not consider them separately
without touching upon the merits (see The Panevezys-Saldutiskis Railway Case, Judgment,
1939, P.C.I.J., Series A/B No.76, pp. 23-24; Case concerning the Barcelona Traction, Light
and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 4; Case of
Certain Norwegian Loans, Order, I.C.J. Reports 1956, p. 73; Case concerning Right of
Passage over Indian Territory, Judgment, I.C.J. Reports 1957, pp. 150-152).

29. In other words, joinder to the merits is required inasmuch as a decision on the
objections requires consideration of the whole or virtually the whole of the merits, in short
the essential points of the claims of Saint Vincent and the Grenadines. Because what the
Respondent is challenging is not the admissibility of the Application in the light of procedure,
but the right which provides the basis for the Application. These are preliminary objections
of substance.

30. A judicial decision in favour of an application based on this type of objection in itself
results in putting an end to the dispute as a whole, because the findings of law emanating
from said decision on the objection completely eliminate the adversarial contest which had
arisen from the dispute. These preliminary objections of substance are entirely in keeping
with the well-established principle, under the theory of international procedure, that, in an
international dispute, each party before the tribunal called upon to resolve the dispute is
entitled to make use of such means as it sees fit, provided they are relevant in relation to the
same dispute. This principle underlies a number of provisions in the statutes and rules of
international jurisdictions. For example, article 88, paragraph 1, of the Rules of the Tribunal
provides:

When, subject to the control of the Tribunal, the agents, counsel and advocates have
completed their presentation of the case, the President of the Tribunal shall declare
the oral proceedings closed. …

31. It happens that the rules adopted by international jurisdiction are adopted in the light of
preliminary procedural objections.

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 However, it is of fundamental importance to note that the issues raised by a ...
[preliminary] objection [of substance], while they can be characterized as “issues of
the merits” as much as those raised by the Application instituting the proceedings
concerning interpretation and the application of the legal norm invoked in that
Application, remain distinct from the merits of the case of which the tribunal is seized
by that same Application, said merits having as their identifying element the
allegations and submissions around which the Application itself takes shape. (see
G. Sperduti, “La recevabilité des exceptions préliminaires de fond dans le procès
international”, Rivista di Diritto internazionale, 1970, Vol. 53, pp. 461-490; p. 485)

III. THE OBJECTIONS

32. The Government of Guinea maintained that the claims of Saint Vincent and the
Grenadines were inadmissible in several respects. The first objection to admissibility
pertained to the nationality of the M/V Saiga.

33. It appears that this challenge to admissibility is of cardinal importance. It raises a

problem which bears upon the merits but which takes on priority. It is therefore the duty of
the Tribunal to begin by considering this question which is of a character such that a decision
upon it may render pointless any further consideration of other aspects of the case.

34. Guinea maintains that the Saiga was not duly inscribed in the registry. According to
Guinea, the vessel was built in 1975. On the day of its detention by the Guinean authorities,
the 28th of October 1997, it was not registered under the flag of Saint Vincent and the
Grenadines. As emerges from Annex 13 of the Memorial, it was on 14 April 1997 that Saint
Vincent and the Grenadines granted the Saiga a provisional certificate of registration.
However, that Provisional Certificate had already expired on 12 September 1997. And the
Saiga was arrested over a month later.

The final Certificate of Registration was not issued by the competent authorities of
Saint Vincent and the Grenadines until 28 November 1997. Thus, it is quite clear that the
Saiga was not inscribed in the registry in accordance with the law during the period from
12 September 1997 to 28 November 1997. For that reason, the Saiga may be characterized as
a ship without nationality at the time it was attacked.

35. The Tribunal should have sought to determine whether the registration of the Saiga by
the competent authorities of Saint Vincent and the Grenadines directly implies an obligation
on the part of Guinea to recognize its effect, i.e. legal standing for Saint Vincent and the
Grenadines to exercise protection. In other words, it is a question of determining whether the
act originating with Saint Vincent and the Grenadines is opposable to Guinea with respect to
the exercise of protection, in particular at the time of the arrest of the Saiga. Such
opposability is to be determined in the light of the rules of international law. The Tribunal
should have addressed this question and examined the question of the validity of the
registration of the Saiga according to the legislation of Saint Vincent and the Grenadines.

36. Naturally, it is up to Saint Vincent and the Grenadines, as it is to any other sovereign State,
to regulate by its own legislation the conditions for registration of ships and to grant the privilege
to fly its flag by its own organs in accordance with that legislation.

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 The tribunal entrusted with deciding the Dispute Concerning Filleting within the Gulf
of St. Lawrence recalled:

that the right of a State to determine by its legislation the conditions for the
registration of ships in general and fishing vessels in particular is part of the exclusive
competence of that State. (Award of 17 July 1986, paragraph 27)

The principle of the exclusive competence of the State in the determination of nationality
has long been enshrined. Let us recall the words of the Permanent Court:

… in the present state of international law, questions of nationality are … in principle

within this reserved domain

of States (Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923,
P.C.I.J., Series B, No. 4, p. 24).

This opinion is very clearly confirmed by the International Court of Justice in

Nottebohm:

[I]nternational law leaves it to each State to lay down the rules governing the grant of
its own nationality. (Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955,
p. 23)

37. But the question which the Tribunal must answer is not solely a matter of the domestic
law of Saint Vincent and the Grenadines. “It does not depend on the law or on the decision
of [Saint Vincent and the Grenadines] whether that State is entitled to exercise its protection,
in the case under consideration” (Nottebohm, op. cit., p. 20). On the other hand, the internal
validity of nationality is the primary condition for its international validity. Just as
international law acknowledges that States have exclusive competence in determining
nationality, the effect of nationality on the international plane is made subordinate to the
requirements of international law. Accordingly, a challenge by a State to an act of nationality
does not invalidate it but does render it not opposable.

38. As is noted by Brownlie, “Nationality is a problem, inter alia, of attribution, and

regarded in this way resembles the law relating to territorial sovereignty. National law
prescribes the extent of the territory of a State, but this prescription does not preclude a forum
which is applying international law from deciding questions of title in its own way, using
criteria of international law” (I. Brownlie, “The Relations of Nationality in Public
International Law”, BYBIL, 1963, pp. 284-364, at pp. 290-291). One may find an
illuminating illustration of these views in the law of maritime delimitation. In its decision of
18 December 1951 in the Fisheries case, the International Court of Justice said: “The
delimitation of sea areas has always an international aspect; it cannot be dependent merely
upon the will of the coastal State as expressed in its municipal law. Although it is true that
the act of delimitation is necessarily a unilateral act, because only the coastal State is
competent to undertake it, the validity of the delimitation with regard to other States depends
upon international law” (Fisheries, Judgment, I.C.J. Reports 1951, p. 132). There is a
particularly striking resemblance between the act of maritime delimitation and the act of

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granting nationality or registration from the standpoint of their status and that of their organic
origin.

39. We should recall here that recourse to a tribunal, “[t]o exercise protection, to apply to
the Court, is to place oneself on the plane of international law. It is [therefore] international
law which determines whether a State is entitled to exercise protection and to seize the
Court” (Nottebohm, op cit., pp. 20-21). And it is from the rules of international law that the
Tribunal derives its power to verify the internal validity of the acts of Saint Vincent and the
Grenadines pertaining to the registration of the Saiga.

40. According to the prevailing view in international judicial decisions, there is no doubt
that an international tribunal is entitled to investigate the circumstances in which a
certificate of nationality has been granted. (Nottebohm, I.C.J. Reports 1955, p. 50,
Judge Ad Hoc Guggenheim, Dissenting Opinion)

Among the many decisions favouring judicial and arbitral review of certificates of
nationality, one should cite that of Commissioner Nielsen in the case Edgar A. Hatton
(U.S.A.) v. United Mexican States, which emphasizes the obligation to prove nationality.

[C]onvincing proof of nationality is requisite not only from the standpoint of

international law, but as a jurisdictional requirement. (Reports of International
Arbitral Awards, United Nations, Volume IV, p. 331, decision of 26 September 1928)

41. That the Tribunal possesses such a power of oversight derives from the principle of
equality of parties. That is why it is not only a right for the Tribunal but also an obligation.
(“[T]he presumption of truth must yield to the truth itself”, as said by arbitrator Bertinatti in
the Medina case (United States v. Costa Rica), decision of 31 December 1862, Moore,
International Arbitration, Vol. 3, p. 2587).

42. Since the challenged registration is a purely internal act, it is normal that in applying the
rules pertaining thereto, the Tribunal should inquire into whether Saint Vincent and the
Grenadines, in inscribing the Saiga in its registry, duly applied its internal legislation in force.
To that end, the Tribunal should have verified the authenticity and compliance with law of
the items of evidence produced to show the validity of the registration claimed before the
Tribunal. In other words, the determination of the nationality of the Saiga at the time of the
arrest as challenged by the Guinean side should have been examined in the light of the
following items of evidence:

a) the Provisional Certificate of Registration;

b) the Permanent Certificate of Registration;
c) the statements of the Maritime Administration;
d) the statements of the Deputy Commissioner for Maritime Affairs;
e) the Merchant Shipping Act of 1982;
f) the Maltese certificate.

43. On that basis the Tribunal could verify the application of internal law in light of the
facts alleged or observed by the parties in order to determine whether they were accurate or
inaccurate.

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44. In other words, the Tribunal should examine the conditions for registration of vessels in
Saint Vincent and the Grenadines, i.e. the legal regime as well as the procedural acts relating
to the Saiga.

45. Saint Vincent and the Grenadines is appearing before the Tribunal as the flag State of
the Saiga. Guinea maintains that the vessel was not duly registered under the flag of Saint
Vincent and the Grenadines at the date of its arrest by the Guinean customs authorities,
28 October 1997. As a consequence, the conditions laid down in article 91 of the United
Nations Convention on the Law of the Sea are not satisfied and the Saiga can be described as
a ship without nationality at the date of its arrest.

46. The Saiga obtained a provisional certificate of registration from Saint Vincent and the
Grenadines dated 14 April 1997. The date of expiration of that Provisional Certificate was
12 September 1997, i.e. more than a month before the arrest. The competent authorities of
Saint Vincent and the Grenadines did not prepare a permanent certificate of registration until
28 November 1997, that is exactly one month after the arrest of the Saiga. The conclusion
here compelled by logic is that the vessel was not validly registered during the period from
12 September 1997 to 28 November 1997.

47. Saint Vincent and the Grenadines advanced the argument that once a vessel is registered
under the flag of Saint Vincent and the Grenadines, it remains registered until it is deleted
from the registry. Saint Vincent asserted this position on the basis of the Merchant Shipping
Act of 1982.

48. The Merchant Shipping Act of 1982 of Saint Vincent and the Grenadines contains two
articles dealing with provisional certificates of registration. These are sections 36 and 37. In
its Reply, Saint Vincent and the Grenadines refers in particular to section 37, which reads:

The provisional certificate of registration shall cease to have effect if, before the
expiry of sixty days from its date of issue, the owner of the ship in respect of which it
was issued has failed to produce to the issuing authority -

(a) a certificate issued by the government of the country of last registration of

the ship (or other acceptable evidence) to show that the ship’s registration
in that country has been closed; or

(b) evidence to show that the ship has been duly marked as required by
section 22.

49. The certificate of deletion was to come from Malta, the country of last registration of
the Saiga, which was then called the “Sunflower”.

50. Guinea points out that these provisions deal with special circumstances, namely the
effects which flow from failure to produce certain documents in regard to the Provisional
Certificate. If these documents are not produced within sixty days after issuance of the
provisional certificate, said certificate ceases to have effect. These provisions cannot, then,
be adduced in support of the argument of Saint Vincent and the Grenadines to the effect that
the vessel, once it has been provisionally registered under its flag, remains so beyond the

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period for which the Provisional Certificate was issued. The purpose of section 37 is
precisely to produce the opposite effect, namely to shorten the period of validity.

51. It should be noted that Saint Vincent and the Grenadines did not revert to this argument
thereafter.

52. The other provisions of the Merchant Shipping Act dealing with provisional registration
are found in section 36(2). This article provides that a provisional certificate of registration
has the same effect as the ordinary certificate, for a period of one year from the date of
issuance. In other words, a provisional certificate cannot be valid for more than one year
regardless of the circumstances.

53. However, section 36(2) does not say that such a provisional certificate of registration is
always valid for a period of one year despite the fact that the register limits the validity of the
provisional certificate to six months, as it did in the present case.

54. In the official brochure of the Saint Vincent and the Grenadines Maritime
Administration concerning procedures for registration, one finds under the heading
“Provisional Registration Certificate” the following: “The provisional registration certificate
is issued for six months and can be extended, under certain circumstances, for a further
period of six months.” The total period of validity would then be 12 months, in keeping with
section 36(2).

55. Saint Vincent and the Grenadines then produced another item of evidence, in the form
of a certificate issued by a representative of its Maritime Administration based in Monaco,
dated 27 October 1998, which reads as follows:

I hereby confirm that m.t. “SAIGA” of GT 4254 and NT 2042 was registered under
the St. Vincent and the Grenadines Flag on 12th March, 1997 and is still today validly
registered.

56. This certificate adds nothing new. It is dated 27 October 1998, that is one month after
the facts, and it does not produce the desired effect, namely for the Saiga to be considered as
being validly registered under the flag of Saint Vincent and the Grenadines during the
relevant period in question, namely from 12 September 1997 to 28 October 1997. This
certificate only confirms that the vessel was registered on 12 March 1997.

57. Saint Vincent and the Grenadines then drew a distinction between registration on the
one hand and issuance of the certificate on the other. It argued that the validity of a
registration certificate and that of a vessel’s registration are not necessarily the same.
However, such a distinction does not emerge from the Merchant Shipping Act, from the
official brochure setting out the formalities of registration, or from the Provisional Certificate
itself.

58. This means that the registration and the certificate of registration cannot be considered
separately. That is clearly borne out by the letter produced by Saint Vincent and the
Grenadines from the Deputy Commissioner for Maritime Affairs dated 1 March 1999 and
including a copy of the page from the Registry concerning the M/V Saiga, dated
14 April 1997. Under “registrations”, it reads: “Valid thru: 12/09/1997”. It thus appears that

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not only the Certificate but also the registry bear the same date of expiration, i.e.
12 September 1997. The relevant date under discussion is 28 October 1997, which falls
between the date of expiration of the Provisional Certificate (12 September 1997) and that of
the issuance of the Permanent Certificate of Registration (28 November 1997).

59. Saint Vincent and the Grenadines reverted at length to the question of registration at the
hearing of 18 March 1999. Its counsel argued that the situation under the law of Saint
Vincent and the Grenadines is such that a certificate of registration is always valid for one
year, unless it is replaced meanwhile by a permanent certificate of registration or the
exceptional provision of section 37 of the Merchant Shipping Act is applied.

He refers to section 36(2) of that law and asserts that the provisional certificate has
the same effect as an ordinary certificate for a duration of one year.

60. However, counsel for Saint Vincent and the Grenadines did not expressly mention the
date of expiration of the Provisional Certificate of Registration of the Saiga, namely
12 September 1997, when he continued his consideration (section 7) saying that “provision is
made for the issuance of two successive certificates, each of 6 months”. In the same section,
it is said more clearly still that “If the paperwork has been completed within the first
6 months, another provisional certificate is issued”.

61. Moreover, the official document published by the Saint Vincent and the Grenadines
Maritime Administration provides that a provisional certificate is issued for six months and can
be renewed for another six months. The same holds true as to procedures of registration under
other shipping registries, for example all of those cited by counsel for Saint Vincent and the
Grenadines, where the initial registration is provisional and where the initial period of
registration is generally six months, subject to renewal.

(See also, “Laws Concerning Nationality of Ships”, UN Document ST/Leg./Ser.B/5

(UN 1954), where laws relating to registration and nationality of ships of sixty-five (65)
countries are presented; N. Singh, “International Law Problems of Merchant Shipping”,
RCADI, 1962 (III), v. 107, pp. 7-161.)

62. It emerges clearly from the foregoing that when the provisional certificate of
registration expires six months after issuance, the Commissioner for Maritime Affairs must
step in and take steps. We should stress that this necessity derives from the fact that there is
no automatic extension of the validity of the certificate provided by law. This explains the
fact that Saint Vincent and the Grenadines abandoned its argument (Reply, paragraph 24) to
the effect that a vessel registered under the flag of Saint Vincent and the Grenadines remains
so registered until it is deleted from the registry.

63. Counsel for Saint Vincent and the Grenadines admits that action by the Commissioner
for Maritime Affairs is necessary but does not spell out the nature of that action. He explains
(Reply, paragraph 7) that in such cases “another provisional certificate is issued”; however, in
another part of his statement dealing with provisional certificates, he says that the provisional
certificate is issued initially for six months and can be renewed for an additional period of six
months. The form of the action, however, is not spelled out. The Commissioner for
Maritime Affairs can either issue a new provisional certificate or renew the original
provisional certificate. But regardless of the kind of action taken, it must be done by the

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Commissioner, and done in keeping with the provisions of the “implementing enactment”
and the rules governing other shipping registers.

64. The fact is that no measure was taken by the Commissioner for Maritime Affairs to deal
with the expiration of the Provisional Certificate. This is confirmed by the cross-examination
of Captain Orlov of the Saiga (Verbatim Record ITLOS/PV.99/3, page 6, line 12). He
indicates that he had not received any information from Seascot (the representative of the
owners) with regard to a possible extension of the Provisional Certificate after its expiration.

65. In order to get around this difficulty, counsel for Saint Vincent and the Grenadines cites
the letter from the Commissioner for Maritime Affairs dated 1 March 1999, in which he
indicates that it is common practice for owners to allow the validity of their certificates to lapse
for a brief time.

66. This statement is serious. It emanates from the authority responsible for registering
vessels in Saint Vincent and the Grenadines, who, in a letter to the Tribunal, writes that it is
common in Saint Vincent and the Grenadines for owners to be unconcerned about the date of
expiration of their provisional certificate. It was thus quite deliberately that the owners of the
Saiga sent out to sea a vessel whose papers were not in order. There is culpable negligence
in this. Would Saint Vincent and the Grenadines ever consent to incur responsibility for
damages (pollution, for example) caused by vessels under its flag whose registration
documents were expired at the time of the unlawful acts?

67. In the latter part of the letter, the Commissioner confirms, however, that after the
expiration of the validity of the provisional certificate, the owner must obtain either another
provisional certificate or a permanent certificate. He recalls that, in the case of the Saiga, it
was a permanent certificate that was obtained.

68. It was shown, in the form of a probative document, that the Permanent Certificate of the
Saiga was dated 28 November 1997, i.e. the second day of the oral proceedings in the prompt
release proceeding when Saint Vincent and the Grenadines produced the Permanent
Certificate to the Tribunal and the parties.

69. Saint Vincent and the Grenadines argued that it had been difficult to send the
Permanent Certificate aboard the Saiga because the vessel might have been at sea. If that
were the case, the Permanent Certificate would have indicated a date prior to the arrest of the
vessel, i.e. prior to 28 October 1997. In that case, the date of issuance of the certificate could
have been done later. However, it was not so. The Permanent Certificate is dated a month
after the arrest of the Saiga and, apparently, was requested of the shipping registry only at the
time when the problem of the owners of the Saiga arose in the context of the prompt release
proceeding. The statements of Counsel for Saint Vincent and the Grenadines at the sitting of
28 November 1997 clearly bear this out.

70. Saint Vincent and the Grenadines then produced documents emanating from the
Commissioner for Maritime Affairs with a view to supporting the idea that the provisional
registration of 12 March 1997 remained valid after its expiration. For example, an extract
from the registry dated 24 February 1999 was adduced, in which the validity of the
registration was indicated as permanent. However, such an effect occurs on the date of

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issuance of the extract. This means that the vessel was registered on a permanent basis as
from 24 February 1999, which adds nothing to the debate.

71. On 12 March 1997, the registration of the Saiga was not permanent, as is borne out by
Annex A to the letter of the Deputy Commissioner for Maritime Affairs of 1 March 1999
containing the extract of the registry of 15 April 1997, which bears the clear indication “Valid
thru: 12/09/1997”. The same holds true for the certificate of the Commissioner for Maritime
Affairs of 27 October 1998 produced in Annex 7 of the Reply of Saint Vincent and the
Grenadines.

72. In this regard, the only probative document which could have been instructive to the
Tribunal would be the production of a request from Seascot Management addressed to the
Saint Vincent Maritime Administration asking for an extension of the Provisional Certificate
or the issuance of another certificate. But no evidence of such a request has been produced.

73. Saint Vincent advanced another argument consisting of comparing the provisional
certificate of registration of a vessel to the passport of an individual. The Respondent
rejected the argument, explaining that “A natural citizen retains the nationality of his State
independent of the expiry of his passport. A vessel, however, acquires the nationality of a
State only by express application for registration. Such registration can be and will often be
changed in the life of a vessel. The registration is a constitutional act by which the
nationality of the flag State is granted to the vessel. If this act of registration is limited in its
validity, indeed the vessel becomes stateless, which is quite different from the case of a
natural citizen” (ITLOS/PV.99/18, page 12, lines 40-46). One might add that it is irregular
to travel with an expired passport.

74. Saint Vincent further invokes section 36(2) of the Merchant Shipping Act of 1982,
which provides that a provisional certificate of registration “shall have the same effect as the
ordinary certificate of registration until the expiry of one year from the date of its issue”. It
should be noted that the law does not say that an expired certificate continues to have the
same effect as an ordinary certificate. Moreover, provisional certificates are designed to have
a period of validity of three to six months, their renewability depending on the country. This
is sufficiently demonstrated by practice and internal legislation on the matter. Saint Vincent
itself adopted a duration of six months for provisional certificates which it issues, which can
be renewed once under certain conditions or replaced by a permanent certificate of
registration. This is borne out by the official brochure produced by Saint Vincent, which
appears as an implementing enactment of the Merchant Shipping Act of 1982.

75. To support its argument concerning the one-year validity of the Provisional Certificate
of Registration, Saint Vincent and the Grenadines indicates that, pursuant to section 36(3)(d)
of the Merchant Shipping Act of 1982, payment of an “annual fee for one year” is required at
the time of submission of an application for provisional registration. For this reason, Saint
Vincent and the Grenadines concludes that the Provisional Certificate of Registration had
retained its validity after 12 September 1997 and at all times during the present dispute.

76. This argument, as framed by Saint Vincent and the Grenadines, may lead to error.
section 36(3) reads as follows:

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 (3) Every applicant for registration of a ship under this section shall, without prejudice
to the generality of the provisions of subsection (1), produce the following evidence,
namely -
(a) in respect of the ship -
(i) evidence to establish that any foreign certificate of registration or
equivalent document has been legally cancelled or the registration
has been duly closed;
(ii) if there is an outstanding certificate, evidence to show that the
government who issued it has consented to its surrender for
cancellation or closure of registration; or
(iii) a declaration from previous owners undertaking to delete the ship
from the existing registration and confirming that all outstanding
commitments in respect of the ship have been duly met;
(b) evidence to show that the ship is in a seaworthy condition;
(c) evidence to show that the ship has been marked as provided in section 22
or that the owner of the ship has undertaken to have the ship so marked
immediately upon receipt of a provisional certificate of registration;
(d) evidence of payment of the fee due on the first registration and of the
annual fee for one year in respect of the ship.

77. In light of section 36(3) it appears that the argument of Saint Vincent and the Grenadines
is, to say the least, specious. This section appears, rather, counter-productive to the argument
advanced by Saint Vincent. The various items of evidence required as preconditions were not
provided to the Tribunal. None of the first three items required, concerning cancellation or
deletion from the register of the country of last registration was provided. Saint Vincent and the
Grenadines was unable to produce the certificate of deletion from Malta before the Tribunal. It
now invokes the “annual fee” out of context to support the idea of annual validity of the
Provisional Certificate. We know that provisional certificates are issued in Saint Vincent and
the Grenadines for a duration of six months, renewable under certain conditions, as indicated by
the “implementing enactment” of the Merchant Shipping Act, which provides:

The provisional registration certificate is issued for six months and can be extended,
under certain circumstances, for a further period of six months.

78. With regard to section 37 of the Merchant Shipping Act, Counsel for Saint Vincent and
the Grenadines explained to the Tribunal (sitting of 18 March 1999) that the letter from the
Deputy Commissioner gives the owner of the Saiga other acceptable evidence showing that
the registration of the vessel in the country of last registration was closed. However, that
counsel did not show what that “other acceptable evidence” of the Saiga’s deletion from the
previous register was.

79. The only evidence should have been - in accordance with section 37 - production of a
certificate of deletion from the Maltese register from the authorities of that country. However,
that certificate of deletion was not produced; Counsel for Saint Vincent and the Grenadines was
content to say that:

Since there has never been any suggestion that the Saiga remains on the Maltese
register, we have judged it unnecessary to trouble the Tribunal with details of her

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 history under a different name and a different flag years before the events which have
given rise to this litigation.

80. Under these circumstances, it is impossible to form a precise idea of the situation of the
Saiga at the time of its arrest. Was the vessel in a position to sail under the flags of two
States which it could use according to its convenience, with the ensuing consequences?

81. In my view, the Tribunal should have directly turned to Malta, which is a State party to
the Convention, to inquire into the situation of the vessel in the registry of that country, in
order to settle the point as to whether the deletion certificate could or could not be produced.
In any event, the fact that this item of evidence was not produced leads one to think that the
Saiga was not deleted from the Maltese registry at the time of its arrest.

82. All in all, consideration of the Provisional Certificate of Registration, the Permanent
Certificate of Registration, the official brochure of the Maritime Administration concerning
procedures for registration, the certificate of the Deputy Commissioner for Maritime Affairs,
the 1982 Merchant Shipping Act, and the non-production of the Maltese certificate of
deletion enables us to conclude that the Saiga was not validly registered on the relevant date
(27 and 28 October 1997), i.e. at the time of its arrest by the Guinean authorities.

83. The Tribunal finds that Saint Vincent and the Grenadines acted at all times on the basis
of the fact that the Saiga was a vessel of its nationality, that it acted as a flag State of the
vessel at all stages of the dispute and in all phases of the proceedings under way. It is in that
capacity, says the Tribunal, that it invoked the jurisdiction of the Tribunal to request the
prompt release of the vessel and its crew, pursuant to article 292 of the Convention, and in
filing an application for the prescription of provisional measures pursuant to article 292.

84. With regard to Guinea, the Tribunal notes that it did not contest or in any way cast
doubt upon the registration or nationality of the vessel at any time before the submission of
its Counter-Memorial in October 1998. Previously, says the Tribunal, Guinea had latitude to
make inquiries concerning the registration of the Saiga or the papers pertaining thereto. For
example, says the Tribunal, Guinea could have inspected the shipping registry of Saint
Vincent and the Grenadines. Other opportunities to challenge the registration or nationality
of the vessel arose in the course of the proceedings before the Tribunal concerning the
prescription of provisional measures in February 1998. The Tribunal adds that it is also
relevant to note that the Guinean authorities cited Saint Vincent and the Grenadines as the
flag State of the Saiga in the cédule de citation by which criminal proceedings were lodged
against the Master of the vessel before the Court of First Instance of Conakry. In the
judgment of the Court of First Instance, and in the subsequent judgment by the Court of
Appeal affirming it, Saint Vincent and the Grenadines had been mentioned as the flag State
of the Saiga.

85. Thus, the Tribunal alludes to the conduct of the two parties in support of the argument
that Saint Vincent and the Grenadines was the flag State of the Saiga at the time of the
events, without one knowing whether it seeks to qualify the conduct of Guinea as a case of
estoppel, consent, or preclusion. One would have liked to be certain of this point. One point
that does emerge consistently, on the other hand, is the fact that the statement of Guinea that
the Saiga was not duly registered in the registry of Saint Vincent and the Grenadines at the
time of its arrest is a new fact in the present case. This falls within the category of a fact “of

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such a nature as to be a decisive factor, which fact was, when the judgment was given,
unknown to the Tribunal ...” (Rules of the Tribunal, article 127).

86. Indeed, this fact revealed in the Counter-Memorial of Guinea was unknown to the
Tribunal at the time of the first Saiga case concerning prompt release of the vessel and in the
first phase of the present proceedings pertaining to the request for prescription of provisional
measures. The discovery of this fact gives Guinea legal grounds to request the revision of
judgments given in the course of the aforementioned proceedings. As was recalled by the
International Court of Justice in the case Effect of Awards of Compensation Made by the
United Nations Administrative Tribunal (Advisory Opinion):

This rule contained in article 10, paragraph 2, cannot however be considered as

excluding the Tribunal from itself revising a judgment in special circumstances when
new facts of decisive importance have been discovered; and the Tribunal has already
exercised this power. Such a strictly limited revision by the Tribunal itself cannot be
considered as an “appeal” within the meaning of that article and would conform with
rules generally provided in statutes or laws issued for courts of justice, such as for
instance in article 61 of the Statute of the International Court of Justice. (Advisory
Opinion, I.C.J. Reports 1954, p. 55)

87. The discovery of this fact appears rather to be opposable to Saint Vincent and the
Grenadines. It can also be viewed as a fundamental change of circumstances.

88. The approach of the Tribunal in reaching these conclusions is lacking in clarity. The
Judgment refers to the principles by which the evidence is evaluated without one knowing the
method actually used. Rather, the Judgment indicates that the Tribunal, in evaluating the
evidence, is of the view that, as a general rule, it should not lightly be concluded that a ship is
without nationality.

89. This is, to say the least, a singular approach. Facts must be legally characterized and
rules of law are made to be applied. There is a specific and very detailed legal regime which
applies to cases of commercial vessels whose papers are not in order. The case of the Saiga
is a case of absence of nationality. That does not mean that the vessel is completely without
protection as the words of the Tribunal might suggest. Quite the contrary, as pointed out by
O’Connell, “It follows that the right to protect a ship is not necessarily exclusive to the State
of nationality, but might equally extend to the State whose nationals own the ship. It also
follows, perhaps, that when a ship loses her nationality she falls subject to the law of
nationality of the owners. A ship which is without nationality, then, is not necessarily a ship
without law, but it may be one lacking a State to protect it” (see The Chiquita, 19 F.2d 417
(1927); Moore, D., Vol. II, p. 1002 et seq.; US v. The Pirates, 5 Wheat. 184 at 199 (1820);
U.S. v. Jenkins, 26 Fed. Cas. No. 15473a (1838); The Alta, 136 Fed. 513 at 519 (1905). See
Molvan v. Att.-Gen. for Palestine (1948) A.C. 351). (D. P. O’Connell, International Law,
Second Edition, Vol. II, London, Stevens & Sons, 1970, p. 607. As regards the probative
value of statements of ship’s papers concerning the nationality of the vessel, see G. Gidel, Le
Droit International Public de la Mer, Volume I, Paris, E. Duchemin, 1981, p. 89.)

90. This amounts to saying that everything tends to support the admissibility of the Guinean
objection but the Tribunal judged that in the particular circumstances of the case it would not
be doing justice if it did not consider the merits of the case. This attitude is somewhat

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surprising. As the International Court of Justice has had occasion to point out (I.C.J. Reports
1966, op. cit., p. 34), humanitarian considerations may inspire rules of law; thus, the
preamble of the United Nations Charter constitutes the moral and political underpinning for
the legal provisions which are set forth therein. Such considerations are not, however, rules
of law in themselves. All States take an interest in these matters; it is in their interest to do
so. But it is not because an interest exists that it has a specifically legal character.

(Concerning the function of a Tribunal, see, for example, the case Northern
Cameroons [Cameroon v. United Kingdom], Preliminary Objections, Judgment, I.C.J.
Reports 1963, pp. 33-34.)

91. According to the United Nations Convention on the Law of the Sea (article 91,
paragraph 1, second sentence) “[S]hips have the nationality of the State whose flag they are
entitled to fly”. Authorization to fly the flag is given by the Registry on the condition that the
vessel be registered. In the case of the Saiga, the validity of the registration was limited to
12 September 1997. And, since there was no extension of the provisional registration, the
Saiga was a ship without nationality at the time of its arrest.

92. Consequently, the Tribunal should declare that the Saiga was a ship without nationality
at the time of its arrest and, in keeping with the principle of continuous nationality, i.e.

the rule of international law that a claim must be national not only at the time of its
presentation but also at the time of the injury

hold that Saint Vincent and the Grenadines may not exercise rights on behalf of the Saiga
because it is the bond of nationality between the State and the vessel which alone confers
upon the State the right of diplomatic protection (Panevezys-Saldutiskis Railway, Judgment,
1939, P.C.I.J., Series A/B, No. 76, p. 16).

93. In other words, Saint Vincent and the Grenadines does not have standing, not in the
sense of “Applicants’ standing … before the Court” (i.e. the question of jurisdiction) but in
the sense of “legal right or interest regarding the subject-matter of their claim” (I.C.J. Reports
1966, p. 18).

94. The Tribunal, consequently, did not have to take up the other preliminary objections
raised by Guinea or the submissions of the parties other than those upon which it decided in
accordance with the reasoning set forth above.

(Signed) Tafsir Malick Ndiaye

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