no other means of protection, they may use any necessary force in order to defend
themselves”.
35
A classic case recently dealt with by the International Tribunal of the Law of the
Sea (ITLOS) is the m.v. Saiga case. Here a dispute arose between Saint Vincent and
the Grenadines in respect of the arrest and detention of the ship m.v. Saiga which was
flying the Saint Vincent and the Grenadines flag. As a flag State, Saint Vincent and
the Grenadines contended that the action taken by Guinea in forcibly arresting the
ship and its crew and detaining them run contrary to the provisions of the Law of the
Sea Convention and were thus a flagrant breach of Guinea’s obligations to the flag
State. Grenadines contended that the arrest was unjustified as the m.v. Saiga was
engaged in lawful activities outside the territorial sea of Guinea, that the laws on
which Guinea based its actions were at variance with the relevant provisions of the
convention and that Guinea had used unreasonable force in arresting the ship
contrary to the applicable provisions of the law of the sea and under
international law.
Guinea contended that the arrest of the ship was lawful under international law as
codified in the UNCLOS as the ship was engaged in activities in the “customs
radius” of Guinea that were prohibited under its national laws. Guinea also claimed
that although the ship was arrested outside its territorial sea, the arrest was in exercise
of hot pursuit as provided for under Article 111 of UNCLOS. Guinea also defended
the use of force by reason of the fact that the m.v. Saiga failed to obey the orders of
the enforcement agencies and that in the circumstances the force applied was
necessary and reasonable.
Before the substantive suit could be heard on its merits, St Vincent and the
Grenadines sought provisional Measures from the Tribunal as it contended that the
vessel flying its flag had been unduly detained. The Tribunal in granting the
Provisional Measures ordered the prompt release of the vessel and its crew members,
the posting of a reasonable bond by Saint Vincent and the Grenadines equivalent to
the amount of oil discharged and an amount of $400,000.
In determining the substantive case on its merits, the Tribunal found for a fact that
the m.v. Saiga was bunkering outside the territorial sea of Guinea but within its
Exclusive Economic Zone. After consideration of all the facts, the tribunal ruled that
with respect to the right of Guinea to arrest the ship, although the coastal State has
the right to enforce its laws against ships operating in its waters, there are limits to the
exercise of such powers in particular areas.
The Tribunal found that Guinea was not entitled to apply its customs laws to a
ship which was operating outside its territorial waters and contiguous zone. It noted
that by applying its customs laws to a customs radius which includes parts of the
EEZ it had acted in a manner at variance with the provision of the convention.
Consequently, the arrest and detention of the vessel, the prosecution and conviction
of its Master, the confiscation of the cargo and the seizure of the ship were contrary
to the Convention.
35 Churchill and Lowe (1988), pp. 83–84.
506
E. K. Mbiah
themselves”.
35
A classic case recently dealt with by the International Tribunal of the Law of the
Sea (ITLOS) is the m.v. Saiga case. Here a dispute arose between Saint Vincent and
the Grenadines in respect of the arrest and detention of the ship m.v. Saiga which was
flying the Saint Vincent and the Grenadines flag. As a flag State, Saint Vincent and
the Grenadines contended that the action taken by Guinea in forcibly arresting the
ship and its crew and detaining them run contrary to the provisions of the Law of the
Sea Convention and were thus a flagrant breach of Guinea’s obligations to the flag
State. Grenadines contended that the arrest was unjustified as the m.v. Saiga was
engaged in lawful activities outside the territorial sea of Guinea, that the laws on
which Guinea based its actions were at variance with the relevant provisions of the
convention and that Guinea had used unreasonable force in arresting the ship
contrary to the applicable provisions of the law of the sea and under
international law.
Guinea contended that the arrest of the ship was lawful under international law as
codified in the UNCLOS as the ship was engaged in activities in the “customs
radius” of Guinea that were prohibited under its national laws. Guinea also claimed
that although the ship was arrested outside its territorial sea, the arrest was in exercise
of hot pursuit as provided for under Article 111 of UNCLOS. Guinea also defended
the use of force by reason of the fact that the m.v. Saiga failed to obey the orders of
the enforcement agencies and that in the circumstances the force applied was
necessary and reasonable.
Before the substantive suit could be heard on its merits, St Vincent and the
Grenadines sought provisional Measures from the Tribunal as it contended that the
vessel flying its flag had been unduly detained. The Tribunal in granting the
Provisional Measures ordered the prompt release of the vessel and its crew members,
the posting of a reasonable bond by Saint Vincent and the Grenadines equivalent to
the amount of oil discharged and an amount of $400,000.
In determining the substantive case on its merits, the Tribunal found for a fact that
the m.v. Saiga was bunkering outside the territorial sea of Guinea but within its
Exclusive Economic Zone. After consideration of all the facts, the tribunal ruled that
with respect to the right of Guinea to arrest the ship, although the coastal State has
the right to enforce its laws against ships operating in its waters, there are limits to the
exercise of such powers in particular areas.
The Tribunal found that Guinea was not entitled to apply its customs laws to a
ship which was operating outside its territorial waters and contiguous zone. It noted
that by applying its customs laws to a customs radius which includes parts of the
EEZ it had acted in a manner at variance with the provision of the convention.
Consequently, the arrest and detention of the vessel, the prosecution and conviction
of its Master, the confiscation of the cargo and the seizure of the ship were contrary
to the Convention.
35 Churchill and Lowe (1988), pp. 83–84.
506
E. K. Mbiah