Peter H.F. Bekker, Ph.D. (International Law) of White & Case LLP, New York, NY and a former staff attorney of the International Court of Justice, shares the following with our readers.

Note: Under the provisions of The United Nations Conventions on the Law of the Sea, 1983, a number of interested bodies, including the International Tribunal for the Law of the Sea, came into existence.

On July 1, 1999, the International Tribunal for the Law of the Sea (ITLOS or Tribunal), the 20 judge tribunal seated in Hamburg, delivered its first judgment on the merits of a case concerning a dispute between Saint Vincent and the Grenadines and the Republic of Guinea. The dispute arose from the arrest, on October 28, 1997, by Guinean patrol boats of the M/V SAIGA and its Ukrainian Master and crew (including three Senegalese painters) at a point south of the southern limit of Guinea's exclusive economic zone. The SAIGA, an oil tanker engaged in selling gas oil as bunker to fishing and other vessels off the coast of West Africa and flying the flag of Saint Vincent and the Grenadines, was owned by Tabona Shipping Company Ltd. of Nicosia, Cyprus, and managed by Seascot Shipmanagement Ltd. of Glasgow, Scotland. It was chartered to Lemania Shipping Group Ltd. and carried a cargo of gas oil owned by Addax BV, both of Geneva, Switzerland.

The Tribunal also held that Guinea used excessive force contrary to international law while stopping and arresting the SAIGA. It ordered Guinea to pay compensation to Saint Vincent and the Grenadines in the sum of $2,123,357 with interest. Although the judgment contains a number of interesting statements on exclusive economic zone, hot pursuit, vessel arrest, and use of force issues in the context of the law of the sea, this article will focus on the registration and nationality aspects of the first ITLOS case as they affect the rights and obligations of flag states like the Marshall Islands.

The first objection raised by Guinea to the admissibility of the claims against it was that Saint Vincent and the Grenadines did not have legal standing to bring claims concerning measures taken by Guinea against the SAIGA, on the basis that on the day of its arrest the vessel was not validly registered under the flag of Saint Vincent and the Grenadines. The SAIGA was registered provisionally on March 12, 1997, and the ship's registration was recorded in the Registry Book of Saint Vincent and the Grenadines on March 26, 1997, with an entry that said: "Valid thru: 12/09/1997." The Provisional Certificate of Registration issued on April 14, 1997 contained the same date of expiration. The Permanent Certificate of Registration was not issued until November 28, 1997.

On the basis of these facts, Guinea argues that the SAIGA was unregistered between September 12 and November 28, 1997, and was a ship without nationality at the time of its arrest. Saint Vincent and the Grenadines maintained that when a vessel is registered under its flag, it remains so registered until deleted from its registry and that, under its Merchant Shipping Act, a vessel does not lose Vincentian nationality merely because its provisional certificate of registration has expired. Guinea's objection called for the Tribunal's interpretation of Article 91 of the Convention, governing the nationality of ships.

The Tribunal stated that Article 91 codifies a well-established rule of general international law, according to which it was for Saint Vincent and the Grenadines to fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. These are all matters that are regulated by a state in its domestic law.

Determination of the criteria and establishment of the procedures for granting and withdrawing nationality to ships are matters within the exclusive jurisdiction of the flag state (subject to the procedures under Part XV on "Settlement of Disputes" of the Convention). The Tribunal found support of the SAIGA's Vincentian nationality in the inscription of "Kingstown" as the port of registry on the ship's stern, the documents on board and the ship's seal containing the words "SAIGA Kingstown" and the then-current charter party that recorded the flag of the SAIGA as "Saint Vincent and the Grenadines."

In the Tribunal's view, these indications were reinforced by the conduct of Saint Vincent and the Grenadines after the incident giving rise to the dispute, with Saint Vincent and the Grenadines acting as the flag state of the SAIGA during all phases of the legal proceedings. The Tribunal's reliance on subsequent state conduct is somewhat confusing in light of its earlier statement that it needed to consider whether the SAIGA had the nationality of Saint Vincent and the Grenadines at the time of its arrest. The Tribunal also pointed out that, until October 1998, Guinea failed to use several opportunities for raising doubts about the registration and nationality of the SAIGA, including inspection of the Register of Ships of Saint Vincent and the Grenadines.

On the issue of whether the SAIGA had properly been deleted from the Maltese Register, the Tribunal relied entirely on a statement of Saint Vincent and the Grenadines according to which its authorities had received from the ship's owner satisfactory evidence that the ship's registration in the country of last registration had been closed.

Second, Guinea argued that there was no genuine link between the SAIGA and the ship, as required by Article 91, paragraph 1, of the Convention. Saint Vincent and the Grenadines maintained that there is nothing in the Convention to support the contention that the existence of a genuine link between a ship and a state is a necessary precondition for the grant of nationality to the ship, or that the absence of such a genuine link deprives a flag state of the right to bring an international claim against another state in respect of illegal measures taken against the ship.

Based upon its review of the Convention and the 1958 Convention on the High Seas, the Tribunal concluded that the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag state is to secure more effective implementation of the duties of the flag state, and not to establish criteria by reference to which the validity of the registration of ships in a flag state may be challenged by other states.

In addition, the Tribunal found no support in the 1986 Convention on Conditions for Registration of Ships, a treaty that is not yet in force, for Guinea's contention that a basic condition for the registration of ships is that the owner or operator of the ships is also under the jurisdiction of the flag state. The Tribunal concluded that there is no legal basis for Guinea's claim that it can refuse to recognize the right of the SAIGA to fly the flag of Saint Vincent and the Grenadines on the ground that there is no genuine link between the ship and Saint Vincent and the Grenadines.

Third, Guinea argued that certain claims of Saint Vincent and the Grenadines could not be entertained by the Tribunal because they related to violations of the rights of natural juridical persons who are not nationals of the claimant. In rejecting Guinea's objection the Tribunal pointed out that the Convention considers a ship as a unit as regards the obligations of the flag state with respect to the ship and the right of a flag state to seek reparation for loss or damage caused to the ship by acts of other states and to institute proceedings under Article 292 of the Convention for the prompt release of a vessel and its crew (in this case, the Tribunal delivered its judgment granting the flag state's Request for the prompt release of the SAIGA and its crew on December 4, 1997). Thus the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag state, the nationalities of these persons being irrelevant. According to the Tribunal, this conclusion is supported by two basic characteristics of modern maritime transport, namely the transient and multinational composition of ships' crews and the multiplicity of interests that may be involved in the cargo on board a single ship.

The Tribunal's final judgment in this first case, rendered within 18 months from its submission, demonstrates that the world's first permanent law of the sea tribunal is committed to act swiftly and decisively based on a tight schedule of time limits (in this case, two rounds of written pleadings within six months followed by hearings within three months), thus offering to international maritime interests a genuine and attractive alternative for the International Court of Justice in The Hague.

For further information regarding the Hamburg Tribunal or other Public International Law issues contact: Peter H. F. Bekker, Esq., USA telephone (212) 819-8964 or by e-mail at bekkepe@ny.whitecase.com.

This article is intended to summarize points of interest in the material described herin. It is not intended to be exhaustive or to be legal advice with respect to the matters discussed.