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International Tribunal for the Law of the Sea

The M/V "Saiga" (No. 2) (Panama v. France)

1 July 1999

This case arose out of the arrest and detention by Guinea of the oil tanker "Saiga", which was  flying the flag of Saint Vincent and the Grenadines. After having all claims denied by the Guinean courts, Saint Vincent filed a claim with the Tribunal for the Law of the Sea. The Tribunal considered issues regarding, inter alia, the registration of the Saiga, the right of hot pursuit, the use of force and reparations.

The Saiga, manned by a Ukrainian crew, was engaged in selling gas oil to fishing boats off the coast of West Africa. The ship was south of the southernmost tip of the Guinean exclusive economic zone when it was fired upon and boarded by a Guinean patrol boat. After boarding the ship the Guinean authorities disabled the ship's engine with gunfire, injuring two crewmembers, assaulted others in the crew, discharged the cargo and arrested the ship and crew.

Guinea claimed that Saint Vincent and the Grenadines did not have legal standing to bring claims because on the day of the arrest the Saiga was not validly registered under their flag. Saint Vincent and the Grenadines raised three responses: 1) the expiration of the registry a month before the arrest did not preclude nationality because by Vincentian law a ship had to be deleted from the registry before its nationality was changed; 2) Section 36(2) of the Merchant Shipping Act stated that provisional certificates of the type issued to the Saiga shall have the same effect as an ordinary certificate which expires one year from the date of entry; and 3) other overt indicators, such as ship name and labelling, and previous acceptance of Vincentian nationality by Guinea, precluded contesting of the ship's nationality. The Tribunal referred to Article 91 of the United Nations Convention on the Law of the Sea (UNCLOS) which allows every state to fix its own conditions for the grant of its nationality to ships, and held that Saint Vincent and the Grenadines discharged its burden of establishing Vincentian nationality.

Guinea contested any genuine link between the Saiga and Saint Vincent and the Grenadines, but the Tribunal found no guidance in the UNCLOS regarding whether the lack of a genuine link allows a state to challenge the nationality of a ship. The Tribunal refused to infer such a provision and denied Guinea's assertion that the lack of a genuine link precluded Vincentian nationality.

Guinea objected that Saint Vincent and the Grenadines failed to exhaust local remedies. The Tribunal first held that the rights of Saint Vincent and the Grenadines - the right of freedom of navigation, the right not to be subject to customs and contraband laws of Guinea, the right not to be subjected to unlawful hot pursuit, the right to prompt compliance with tribunal judgments, and the right not to be cited before the criminal courts of Guinea - were all rights that belong to Saint Vincent under international law, so Guinean law was inapplicable. The Tribunal then held that application of the requirement of exhaustion of local remedies requires a jurisdictional connection between the petitioner and the state responsible for the wrongful act, and that presence within a customs radius was insufficient to establish jurisdiction.

Saint Vincent and the Grenadines claimed that the arrest of the Saiga was illegal, stating that the ship did not violate Guinean importation law merely by providing fuel ("bunkering") to licensed fishing vessels in the Guinean exclusive economic zone. The Tribunal, citing its competency to reconcile the compatibility of Guinean customs law enforcement with the provisions of the UNCLOS,  held that Guinea did not meet the conditions of effecting an act that was the only means necessary to safeguard an essential interest from imminent peril without seriously impairing the interest of the State towards which the act was directed. The Tribunal stated that Guinea's extension of its customs laws to parts of the exclusive economic zone was the only means of protecting its interest, and that the arrest and detention of the Saiga and subsequent events were contrary to the UNCLOS. The Tribunal then declined to address the broader issue of rights of exclusive economic zones and bunkering.

The Tribunal noted that the prerequisite conditions for hot pursuit had not been met at the time of the incident. While Guinea admitted that the arrest had taken place outside of the economic zone, the Tribunal held that hot pursuit had not been legally effected regardless of whether Saint Vincent and the Grenadines had violated the customs laws of the Guinean exclusive economic zone.

The Tribunal noted that Guinea had gone beyond the bounds of reasonable use of force when Guinea's patrol boats used live ammunition on the unarmed, fully loaded tanker. The Tribunal found that Guinea had failed to issue warnings to the Saiga, and had endangered human life before and after boarding the ship. Consequently, the Tribunal held that Guinea had violated the rights of Saint Vincent and the Grenadines under international law.

Finally, the Tribunal held that Saint Vincent and the Grenadines was entitled to reparations for damages suffered directly, as well as for other damages and losses by the ship and crew. Guinea was ordered to pay US $2,123,357 in damages, but the Tribunal held that each party was to bear their own litigation costs.