Comments on ITLOS, M/T “San Padre Pio” Case (Switzerland v. Nigeria), Provisional Measures Order (6 July 2019)

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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.

The Urgency Test

The urgency test under Article 290(5) is understood to mean that there is a real and imminent risk that irreparable prejudice may be caused to the rights of parties to the dispute before the constitution and functioning of the Annex VII arbitral tribunal (Order, para. 111). This assessment includes an evaluation, first, of whether the rights being advanced by an applicant are at least “plausible,” and then of whether there is urgency in protecting those rights. This Post will only discuss the latter element.

The question was whether there was a risk of irreparable harm to Switzerland’s freedom of navigation as provided under Articles 58(1) and (2) and 92 of UNCLOS, which the Tribunal held as plausible rights (Order, para. 108). In upholding the satisfaction of the urgency test, the Tribunal considered the following points. First, the M/T “San Padre Pio” has not only been detained for a considerable period of time but also that the vessel and its crew are exposed to constant danger to their safety and security. In this regard, the Tribunal took note of an armed attack against the vessel that took place during its detention and a report on piracy and armed robbery against ships of the International Chamber of Commerce-International Maritime Bureau (ICC-IMB), which records a high number of violent incidents in the Gulf of Guinea (Order, para. 129). In addition, the threat to the safety and security of the Master and the three officers of the M/T “San Padre Pio”, and the restrictions on their liberty and freedom for a lengthy period, raise humanitarian concerns (Order, para. 130).

The problem is that the connection between the freedom of navigation and other lawful use of the sea as provided under Articles 58(1) and (2) and the safety, security and other humanitarian conditions of the crews was not clearly held. Indeed, it would require a logical stretch to connect these factors with the freedom of the use of sea or the rights of a flag state. The Tribunal’s assessment was not a necessary consequence of the statement, “considerations of humanity must apply in the law of the sea (Saiga I, para. 155).” For instance, Enrica Lexie I before ITLOS did not take humanitarian conditions into account.

Another issue remains as to whether the urgency of the situation required the release of the individuals. Why was it not sufficient only to order the vessel if it is to preserve Switzerland’s freedom of navigation? Since the individuals were on bail, arguably the humanitarian concerns were not sufficient to justify the decision. This assessment has been thus criticized that it would not satisfy the urgency requirement, when Article 290(5), which is stricter than Article 290(1), calls for caution and judicial prudence (see Kateka, para.3).

However, such an expansive approach has been confirmed in previous cases, and the author considers that the present order did not depart from the precedents. In Arctic Sunrise, the Tribunal considered a wide range of factors without much explanation; the Tribunal accepted the Netherland’s claim that the general condition of the vessel was deteriorating, which may create a risk for the environment; and crew would continue to be deprived of their right to liberty and security as well as their right to leave Russia (Arctic Sunrise, para. 87). Enrica Lexie II before Annex VII arbitral tribunal also noted humanitarian factors such as Marine’s social ties, which were in Italy; the conditions of his family; and, the social isolation as relevant factors in considering the relaxation of bail conditions (Enrica Lexie II, para. 104).

Furthermore, the Tribunal held in ARA Libertad that “any act which prevents by force a warship from discharging its mission and duties is a source of conflict that may endanger friendly relations among States” (ARA Libertad, para. 97; emphasis added) and actions taken by the Ghanaian authorities demonstrated the gravity of the situation when it recognized the satisfaction of the urgency test. Whether this approach is justified under the wordings of Article 290(5) is another issue and beyond the examination of this Post. 

Equal Protection of the Rights of The Parties

The more problematic part of this order is that it de facto curbs Nigeria’s capability to pursue the prosecution. It is likely that the Masters and the crews would not return once they leave the country, even if the Annex VII arbitral tribunal holds in its favor. All of them were Ukrainians, and it is highly possible that Switzerland may not be in a position to let them return (Bouguetaia, para. 16; Gao, para. 75; Kateka, para. 9; Petrig, para. 17). Considering that the notion “undertake to ensure” as prescribed in the provisional measures does not entail an obligation of result but an obligation of conduct (Petrig, para. 14), it is said that “Switzerland will have duly discharged its obligation if it deploys adequate means, and exercises its best possible efforts to obtain the return of the Master and three officers for legal proceedings in Nigeria (ibid, para.17).” Switzerland may even be prohibited from surrendering the individuals to Nigeria under non-refoulement principle and other rules of international human rights law, once the individuals are under Swiss jurisdiction.

Therefore, several judges criticized this order, stating that it should not have extended this far and that an alternative was available to release only the vessel and cargo without releasing the master and the crew from the Nigerian territory (see Chadha and Cabello, para.10; Kolodkin, para. 12; Heidar, para.7; and Murphy, para.56). The reason why the Tribunal crafted the measures in this manner is not clear. It could potentially be the nature of the criminal charges, the security situation in the country or other elements that were not advanced before the Tribunal (see Murphy, paras. 49-51).

However, in counterbalancing Nigeria, the Tribunal ordered that Switzerland post the bond or other form of financial security, which it would lose if the country did not return the individuals if Annex VII arbitral tribunal recognized Nigeria’s jurisdiction. While Nigeria’s interest in pursuing its criminal prosecution may not be financially compensated, it seems to be a fair and practical decision. It is in the line with Arctic Sunrise, where the Tribunal ordered immediate release of the vessel and all persons who were detained to Russia, upon the posting of a bond or other financial security by the Netherlands.

Arguably the formula of the current order is at odds with the approach taken in Enrica Lexie I-II. In Enrica Lexie I, the Tribunal held that the submission made by Italy to allow the remaining Marine to leave, if accepted, “will not equally preserve the respective rights of both parties (Enrica Lexie I, para.126).” The Tribunal reached this conclusion even though it reaffirmed the consideration of humanity as well as the consequences that the lengthy restrictions on liberty entailed for the two Marines and their families (ibid, para.126).

In Enrica Lexie II, the arbitral tribunal prescribed a temporal leave of the Marine in an indirect manner; it stated that Italy and India shall cooperate to achieve a relaxation of the bail conditions of the Marine so that he may return to Italy while remaining under the authority of the Supreme Court of India. In making such a decision, the arbitral tribunal noted that India was required to suspend all the proceedings against the Marines under ITLOS’s provisional measures so that there would appear to be no legal interest in the Marine’s physical presence in India (Enrica Lexie II, para. 107). In its dispositive, it confirmed that the individuals remained under the authority of the Supreme Court of India and confirmed Italy’s obligation to return the Marine to India in the event that the tribunal finds that India has jurisdiction over him; and that the two countries cooperate so that the Marine, while remaining under the authority of the Supreme Court, may return to Italy during the arbitration (ibid, para. 132). In other words, even Enrica Lexie II took a cautious approach in issuing this arrangement.

However, the Tribunal is entitled to craft the provisional measures as it decides to be appropriate, and the author is of the view that it has not exceeded its limits. The other element that should be noted is that, in the present case, both countries were willing to cooperate to deal with this matter. The Tribunal thus prescribed that the two parties shall cooperate in good faith in the implementation of Switzerland’s undertaking. It is rather coincidental that there is a sufficiently friendly diplomatic tie between the two countries to implement such an arrangement. It is within the Tribunal’s discretion to make full use of it.

Concluding Remarks

This case should be understood in a larger context of the battle against the proliferation of illegal transactions of oil and fuel (see UNODC, Maritime Crime: A Manual for Criminal Justice Practitioners (2nd ed), p. 165). State practices, particularly in West Africa, have emerged which attempt to extend its jurisdiction to bunkering and STS oil transfers within EEZ (see Testa). In fact, this is the second time that M/T “San Padre Pio” was arrested for such an activity in a foreign EEZ – the first time being an arrest by Angolan authority in 2015 (here). The practices of the dispute resolution institutions will eventually affect efforts to combat such crimes.

In the next stage, the Annex VII arbitral tribunal will probably hold a decision on the jurisdictional allocation on oil and fuel transactions in the EEZ, which is currently hotly debated. Further development should be carefully observed.

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Valentin Schatz says

July 31, 2019

Thank you for your insightful post, Yurika.

An issue that I find particularly interesting is whether coastal States actually have jurisdiction to regulate STS bunkering operations in their EEZ under Article 56(1)(a). In my view, the "Virginia G" dictum on bunkering of fishing vessels cannot simply be transferred to this issue. It requires a separate analysis, including a survey of State practice. Nor is the extent of jurisdiction with respect to environmental protection (Article 56(1)(b) in conjunction with other provisions) clearly defined. The ITLOS did not address the matter in any direct fashion, but some of the Judges' Opinions do to some extent (especially Gao).

You seem to have implicitly taken a stance in favour of coastal State jurisdiction in your post ("The practices of the dispute resolution institutions will eventually affect efforts to combat such crimes."). Could you perhaps explain your position further?

Dariusz Gozdzik says

July 31, 2019

I find utterly shocking the suggestion of some of the judges that the vessel and cargo should have been released but the seafarers detained. A seafarer has no control or influence whatsoever over a ship’s employment. The particular judges’ views will only further the criminalisation of seafarers; something that is already becoming prevalent. That they should emanate from ITLOS is highly regrettable. Why not seek instead the custody of owners, directors and managers who instigated the alleged offences?

Yurika Ishii says

August 2, 2019

Valentin, thank you for your insightful comment.

In the present case, it is undisputed that the vessel was arrested while bunkering petroleum products to vessels in support of those extractive operations (Nigeria, Statement, para. 2.1. Therefore, it is plausible that Nigeria's measures be justified under UNCLOS. As a general matter, however, the problem remains that Miscellaneous Offences Act, the domestic law of Nigeria which was the basis of the arrest, provides potentially wider basis of law enforcement than what might be justified under Article 56(1). In any event, the allocation of jurisdiction is a matter to be decided in the merit so that the practices to order the coastal state to release the suspects under the provisional measures order should be closely examined.

Arron N Honniball says

August 2, 2019

A pleasure to read your post Yurkia.

I was hoping you could elaborate upon what you mean by ‘the problem is that the connection between the freedom of navigation and other lawful use of the sea as provided under Articles 58(1) and (2) and the safety, security and other humanitarian conditions of the crews was not clearly held’? The Swiss claims relate to Articles 58(1) and (2) and 92 to which its rights extend to the vessel ‘as a unit’ (Swiss Agents, paras. 85-86; ITLOS, para. 128). Tribunals have previously defined such a unit broadly. I’d therefore argue it is understandable that irreparable harm to one’s crew is of an equal threat to the rights of the flag state as irreparable harm to the vessel. This conclusion could change with the developments of shore-based remote operation of vessels, but that technology is a fair few years away.

The conclusion that does ring alarm bells is the apparent acceptance of the general surrounding circumstances of a region as a relevant factor in analysing the safety and security of persons for the purposes of determining a risk of irreparable prejudice to the rights of Switzerland (paras. 128-131). As you note the tribunal refers to the ICC-IMB report on piracy and armed robbery incidents in the region as well as the singular unsuccessful vessel assault. But what do paras. 128-131 then conclude? The benchmark of analysis cannot be Switzerland’s previous position because the vessel in question was previously operating in the very same Gulf of Guinea – without the added security benefits of Nigerian Navy personnel aboard the vessel and its proximity to a Nigerian forward operating base! So is the benchmark then the background maritime security level of the state as compared against other states? The concentration of incidents targeting the South East Asian and African regions, as evident in the ICC-IMB reports, hints at the vulnerabilities of this conclusion to claims of ‘bias’ by states unwilling to comply with dispute settlement decisions not in their favour.

Finally, if we consider a case of mixed-nationality crew, would you agree the Tribunal was wise to not place too much weight on the fact that the three crew members in question are not nationals or residents of Switzerland? To take the other line of reasoning to its logical conclusion would result in discrimination on the basis of nationality among crew members. For example the cheap foreign crew members who are most vulnerable and least culpable could be subject to continued detention so as not to prejudice the coastal state rights. However the master and senior officers – who dictate the illegal operations in question – may be released if nationals of the flag state because the flag state has a greater ability to return them at a later stage of proceedings.

Yurika Ishii says

August 11, 2019

Dear Arron,

thank you for insightful comments and my sincere apologies for a slow response.
On your first point, I agree that the unit theory may justify Tribunal's decision in the present case. However, the reliance of the unit theory is not necessary at the stage of provisional measures order. The Tribunal could have allowed the vessel to leave but required the crews to stay (cf. Enrica Lexie I), but little has been explained in the order why it decided otherwise.
On your second point, I agree that the factors that Tribunals took into account in assessing the urgency of this case were quite broad. It did not necessarily compared Nigeria with other states, but certainly considered factors that is not directly affected the present case.
On your third point, I think the nationality or the residence of the crew is irrelevant (sorry if I misunderstood your comment). Flag states may claim to release the foreign crew members regardless of their origins; and whether the flag state can return them may not change this result -- although some flag states may not want to pay a bulk of financial bond for foreign crews.
Thanks again for your comments! Y

Yurika Ishii says

August 11, 2019

Dear Dariusz,

many thanks for your previous comments and my apologies for failing to respond to you. FYI, Nigeria has been attempting to prosecute those who operates "behind the scenes."