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.
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.