On July 6, 2019, International Tribunal for the Law of the Sea (ITLOS) delivered its provisional measures order in the M/T “San Padre Pio” case between Switzerland and Nigeria. The summary of the case is available here. In short, the Nigerian navy intercepted and arrested the M/T “San Padre Pio,” a motor tanker flying the flag of Switzerland, while it was engaged in one of several ship-to-ship transfers of gasoil in Nigeria’s exclusive economic zone (EEZ). The Master and the three officers were detained in prison before they were released and returned to the vessel upon the provision of bail (see Order, paras. 30-41). The Tribunal prescribed that (a) Switzerland shall post a bond or other financial security; (b) Switzerland shall undertake to ensure that the Master and the three officers are available and present at the criminal proceedings in Nigeria, if the Annex VII arbitral tribunal finds Nigeria’s measures do not constitute a violation of the Convention; and (c) Nigeria shall immediately release the vessel, its cargo and the Master, and the three officers to leave the territory and maritime areas under the jurisdiction of Nigeria (Order, para. 146).
Provisional measures are designed to protect the rights of the parties pending the final decision in a dispute. The Convention provides that the measures shall be appropriate to the circumstances so as to preserve the rights of the Parties pending the final decision of the Annex VII arbitral tribunal (UNCLOS, Article 290(1)), and the order has to be prescribed only when the urgency of the situation so requires (ibid, Article 290(5)). It follows that the Tribunal shall ensure that the rights of the two parties are equally preserved and shall not prejudge the question of the jurisdiction of the Annex VII arbitral tribunal or the merits themselves.
However, this order demonstrated the Tribunal’s willingness to take a pro-active approach to provisional measures yet again. While this tendency was already pointed out when the Arctic Sunrise provisional measures order was prescribed (see Guilfoyle & Miles, p.272), the present case seems to have further expanded its reach. The rest of this Post will examine (1) whether the Tribunal’s assessment of the urgency test was consistent with Convention and previous cases; and (2) whether the Tribunal’s decision equally preserved the rights of state parties. Read the rest of this entry…