Chapter VII. Decisions and Advisory Opinions of International Tribunals
International Tribunal for the Law of the Sea
THE M/V "SAIGA" (NO. 1) CASE (SAINT VINCENT AND THE GRENADINES V. GUINEA)
Jurisdiction of the State over the exclusive economic zone—A rticle 73, para-graph 2, of the United Nations Convention on the Law of the Sea—Right of hot pursuit in accordance with article 111 of the Convention
THE TRIBUNAL,
after deliberation,
delivers the following judgment:
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On 13 November 1997, the Agent of Saint Vincent and the Grenadines filed in the Registry of the Tribunal by facsimile an Application under article 292 of the United Nations Convention on the Law of the Sea (hereinafter the Convention) instituting proceedings against Guinea in respect of a dispute concerning the prompt release of the M/V "Saiga" and its crew.
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Pursuant to article 24, paragraph 2, of the Statute of the Tribunal and to article 52, paragraph 2 (a), and article 111, paragraph 4, of the Rules of the Tribunal, a certified copy of the Application was sent by special courier the same day by the Registrar of the Tribunal to the Minister for Foreign Affairs of Guinea, Conakry, and also in care of the Ambassador of Guinea to Germany.
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In accordance with article 24, paragraph 3, of the Statute of the Tribunal, States Parties to the Convention were notified of the Application by a note verbale from the Registrar dated 19 November 1997, inter alia, through Permanent Representatives to the United Nations.
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The Application was entered in the list of cases under No. 1 and named the M/V "Saiga".
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The Application of Saint Vincent and the Grenadines included a request for the submission of the case to the Chamber of Summary Procedure. Guinea was duly notified by the Registrar in a note verbale dated 13 November 1997. Guinea did not notify the Tribunal of its concurrence with the request within the time limit provided for in article 112, paragraph 2, of the Rules of the Tribunal.
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In accordance with article 112, paragraph 3, of the Rules of the Tribunal, the President of the Tribunal, by an Order dated 13 November 1997, fixed 21 November 1997 as the date for the opening of the hearing with respect to the Application, notice of which was communicated to the parties.
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The original copy of the Application and documents in support were subsequently submitted by the Agent of Saint Vincent and the Grenadines in accordance with paragraph 10 of the Guidelines concerning the Preparation and Presentation of Cases before the Tribunal.
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By letter dated 20 November 1997 transmitted by facsimile the same day, the Minister of Justice of Guinea requested a postponement of the hearing on account of difficulties in the receipt of certain documentation.
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In accordance with article 45 of the Rules of the Tribunal, the President of the Tribunal consulted the parties and ascertained their views with regard to the hearing.
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Prior to the opening of the hearing, on 20 November 1997, the Tribunal held its initial deliberations in accordance with article 68 of the Rules of the Tribunal.
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On 21 November 1997, the Tribunal opened the hearing at a public sitting at the City Hall in the Free and Hanseatic City of Hamburg and, by an Order of the same date, postponed the continuation of the hearing until 27 November 1997.
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By letter dated 21 November 1997, the Registrar transmitted the said Order to the parties and informed the Minister for Foreign Affairs of Guinea that the Statement in response of Guinea, consistent with article 111, paragraph 4, of the Rules of the Tribunal, could be filed in the Registry not later than 24 hours before the date fixed for continuation of the hearing.
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On 26 November 1997, Guinea transmitted by facsimile to the Tribunal its Statement in response. The same day, the Registrar sent a certified copy of the Statement in response to the Agent of Saint Vincent and the Grenadines. The original was filed in the Registry on 27 November 1997.
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At two meetings with the representatives of the parties held on 26 and 27 November 1997, the President of the Tribunal ascertained the views of the parties as regards the procedure for the hearing and the presentation by each of the parties. The Agent of Saint Vincent and the Grenadines informed the President of its intention to call witnesses at the hearing. Pursuant to article 72 of the Rules of the Tribunal, information regarding those witnesses was transmitted to the Registrar on 26 and 27 November 1997.
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On 26 and 27 November 1997, prior to the public sitting on 27 November 1997, additional written statements were filed in the Registry by the Agents of Saint Vincent and the Grenadines and of Guinea. The Registrar forthwith transmitted those statements to the other party.
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At two public sittings held on 27 and 28 November 1997, the Tribunal was addressed by the following representatives of the parties:
For Saint Vincent and For Guinea:
the Grenadines: Mr. Hartmut von Brevern,
Mr. Nicholas Howe, Mr. Barry Alpha Oumar,
Mr. Yérim Thiam. Capt. Ibrahim Khalil Cámara,
Mr. Mamadi Askia Cámara.
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At the public sitting held on 27 November 1997, the following witnesses were called by Saint Vincent and the Grenadines and gave evidence:
Mr. Sergey Klyuyev, Second Officer of the M/V "Saiga" (examined by Mr. Thiam); Mr. Mark Vervaet, ORYX Senegal S.A. (examined by Mr. Thiam).
A question was put by Mr. Barry Alpha Oumar to Mr. Vervaet, who replied orally.
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At the public sitting held on 27 November 1997, a map showing areas off the coast of Guinea was projected and commented on by the Agent of Saint Vincent and the Grenadines; a composite photograph of injured crew members of the M/V "Saiga" was also shown.
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At a meeting held on 28 November 1997, the President of the Tribunal informed the Agents of the parties of the points or issues which the Tribunal would like the parties specially to address, in accordance with article 76 of the Rules of the Tribunal.
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At the public sitting held on 28 November 1997, in replying to the first oral arguments made by each party on 27 November 1997, the parties also addressed the questions raised with the Agents of the parties by the President of the Tribunal. When doing so, the Agent of Saint Vincent and the Grenadines made reference to a map produced by him.
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The presence of Their Excellencies Mr. Maurice Zogbélémou Togba, Minister of Justice of Guinea, Mr. Lamine Bolivogui, Ambassador of Guinea to Germany, and Mr. Lothar Golgert, Honorary Consul-General of Guinea in Hamburg, at the hearing and at consultations with the President of the Tribunal and the Registrar was noted.
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Pursuant to article 67, paragraph 2, of the Rules of the Tribunal, copies of the Application and the Statement in response and documents annexed thereto were made accessible to the publicfromthe date of opening of the oral proceedings.
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In the Application and in the Statement in response, the following sub-missions were presented by the parties:
On behalf of Saint Vincent and the Grenadines, in the Application:
The Applicant submits that the Tribunal should determine that the vessel, her cargo and crew be released immediately without requiring that any bond be provided. The Applicant is prepared to provide any security reasonably imposed by the Tribunal to the Tribunal itself, but in view of the foregoing seeks that the Tribunal do not determine that any security be provided directly to Guinea.
On behalf of Guinea, in the Statement in response:
Guinea committed no illegal act and no violation of the procedure; it sought and is still seeking to protect its rights. This is why it is requesting that it may please the Tribunal to dismiss the Applicant's action.
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In their further statements, the following submissions and arguments were presented by the parties:
On behalf of Saint Vincent and the Grenadines:
"The Tribunal will be aware that under the Convention a coastal State is entitled to exercise limited and specific rights as a sovereign within its exclusive economic zone as prescribed in the Convention and in particular article 56 thereof. In this matter it is submitted that the Respondent has erred in two respects:
"First, insofar as the Respondent may have jurisdiction over the ' Saiga' pursuant to the provisions of the Convention, that it has failed to comply with the relevant provisions for the prompt release of the vessel and her crew upon the posting of a reasonable bond or other financial security;
"Second, that the Respondent has wrongly purported to exercise sovereign jurisdiction within its exclusive economic zone beyond what is permitted by the Convention with the effect that it has interfered with therightsof others in its exclusive economic zone, including those of the 'Saiga' flying the flag of the Applicant.
"It is therefore submitted that the Tribunal may determine that the Respondent has failed to comply with the provisions of article 73, paragraph 2, of the Convention by not promptly releasing the 'Saiga' and her crew upon the posting of a reasonable bond or other security, no such reasonable bond or other security having even been sought.
It is further submitted that the Tribunal may determine the amount, nature and form of bond or financial security to be posted for the release of the 'Saiga' and her crew... In this regard it is submitted that it is also within the jurisdiction of the Tribunal to order that the 'Saiga' be returned to her original state, that is with a cargo of gasoil on board, at the tune of her prompt release and before any further bond or financial security is to be provided to secure her release.
On behalf of Guinea:
"Messrs. Stephenson Harwood are not authorized according to article 110, paragraph 2, of the Rules of the Tribunal.
"It is doubtful whether Tabona Shipping Company Ltd. is the owner of the M/V' Saiga'.
"Article 73 of the Convention does not apply and there was no violation of this article by the Government of Guinea.
"Article 292 does not apply. The claimant has not alleged that the Government of...
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