19Arrest of ships in cases of enviromental damages

(Prompt release of vessel and crew under UNCLOS)[*]

Prof. Dr. Suzette V. Suarez

HSB Hochschule Bremen

Thank you very much for the kind introduction, Professor Athanassiou.

I am very happy to be part of this session in your group today. Thank you very much for this wonderful invitation. As Professor Athanassiou mentioned, my background in maritime law is mainly from the public international law side. I therefore decided to speak about a topic that is interesting both from the perspective of international private law as well as international public law: this is the arrest of ships.

This audience knows that ship arrest under maritime law has any of the following purposes: 1) to acquire jurisdiction, 2) to obtain security for the satisfaction of a claim or 3) in execution of a decree. There is also no need to underscore the potential economic ruin that it means for shipping companies.

Arrest of ships has also become a standard procedure in public international law, under the 1982 United Nations Convention on the Law of the Sea (hereinafter UNCLOS).

My aim in this presentation is three-fold:

1. to elaborate on the peculiarities of the prompt release procedure under UNCLOS;

2. to elaborate on the peculiarities of the release of vessels and crew as a provisional measure under UNCLOS; and

3. to offer some concluding observations.

20But before this, I would like to elaborate on the background and rationale of prompt release procedure under UNCLOS.

Background and rationale of prompt release of vessels procedure under UNCLOS

As a short background, under the UNCLOS, coastal States can claim up to 200 nautical miles of exclusive economic zone (hereinafter EEZ). In the EEZ, coastal States have exclusive rights to fisheries and have jurisdiction and control over matters pertaining to the protection and preservation of the marine environment. For this purpose, coastal States may arrest vessels that violate their laws and regulations pertaining to fisheries and the protection and preservation of the marine environment. However, the EEZ is not part of the territory of the coastal States. Coastal States only have functional jurisdiction here. Under the UNCLOS, the EEZ is also high seas for purposes of navigation. The legal regime of the high seas means that the high seas is open to all States. Ships of all States may sail on the high seas based on the principle of freedom of the high seas. However, the freedom of navigation of ships of all Nations has limitations on the EEZ, because coastal States, as mentioned, though limited, have jurisdiction and enforcement powers in this area.

During the negotiations at the Third United Nations Conference on the Law of the Sea (hereinafter UNCLOS III), it was feared that scale of State powers in the EEZ which is at the same time the high seas would tip in favour of coastal States to the detriment of the high seas freedom of navigation. In order that there is a balance between coastal State rights and powers and high seas freedoms, the UNCLOS empowers Flag States or persons on their behalf, the opportunity to request for the prompt release of vessels and crew. This prompt release procedure, which was inspired by the release of vessels procedure in maritime law was adopted by the delegates to UNCLOS III. Similar to the release procedure in maritime law, the prompt release of vessel procedure under UNCLOS is also conditioned upon the posting of a reasonable bond.

The International Tribunal for the Law of the Sea (ITLOS) practice on the release of vessels

The ITLOS is the specialized standing court established under UNCLOS to settle disputes between and among States relating to any provision in UNCLOS and to provide advisory opinions.

The ITLOS is competent to deal with two kinds of prompt release cases: First, the prompt release procedure under Art. 292 and second, the release of vessel and crew as a provisional measure under Art. 295.

The prompt release of vessel under Art. 292

Art. 292 Paragraph 1

Let me elaborate on the peculiarities of prompt release procedure under Art. 292 by referring to the paragraphs of this article in turn. It has 4 paragraphs.

21To reiterate, the coastal State has the power to arrest foreign-flagged vessel in its EEZ for fisheries violations and anti-pollution laws violations. However, in both these instances, the coastal State is also under a duty to promptly release the vessel and crew upon the posting of a reasonable bond or other financial security (Art. 73 for fisheries violations and Arts. 220 and 226 for violations of vessel-sourced pollution laws). Which vessels may be arrested? Merchant vessels that are non-compliant with laws and regulations to protect and preserve the marine environment in the EEZ may be arrested. On the definition of fishing vessels, please take note this includes vessels servicing that fishing vessels and in certain jurisdictions and under international fishing instruments, such vessels include bunkering vessels providing bunker fuel to fishing vessels.

Paragraph 1 of Art. 292 tells us when a request for prompt release may be triggered. This is when it is alleged that the detaining State, the coastal State, did not comply with its duty to promptly release the vessel and the crew upon the posting of a reasonable bond or other financial security.

A prompt release procedure is an urgent proceeding. Such requests may be submitted to ITLOS or to any court or tribunal agreed upon by the parties, this could only be submitted within ten (10) days from the time of detention.

Paragraph 1 also speaks about where the prompt release procedure may be submitted. The question of release could also be brought to any court or tribunal upon the agreement of the parties. Or, failing such an agreement, it could also be brought to any of those mechanisms enumerated under Art. 287 of UNCLOS. Art. 287 refers to three mechanisms: an arbitral tribunal (this is an ad hoc tribunal), the International Court of Justice in the Hague; or the ITLOS.

To date, ITLOS has been the only mechanism where prompt release requests have been submitted. Since the establishment of ITLOS in 1997, there have been nine (9) cases of prompt release under Art. 292 submitted to ITLOS which involved fishing vessels.

Art. 292 Paragraph 2

Who may apply for this particular procedure? Paragraph 2 of Art. 292 states two possibilities. It could be the Flag State and this makes sense upon public international law proceeding as only states may appear in front of the international courts or tribunals. So, the Flag State can apply for this particular procedure.

UNCLOS also allows entities other than the Flag States to make the request only when there is explicit authorization from the Flag State. The following may apply for release: ship-owners, bareboat charterers. This makes sense because normally it could be the ship-owners or their P&I clubs are actually the ones who would end up posting the bond or financial security.

Out of the nine (9) prompt release cases filed at ITLOS, there were only three (3) cases where the Flag States filed the request. The rest were filed on behalf of the Flag States by ship-owners or bareboat charterers.

22Art. 292 Paragraph 3

Paragraph 3 of Art. 292 underscores that the prompt release procedure is restricted only to deal with the question of release and it does not prejudice the merits of any case taking place in the detaining State.

ITLOS dealt with the scope of its competence in the first prompt release case, the M/V “Saiga” Case in 1997. Does ITLOS have competence to deal with the lawfulness of the arrest per se? ITLOS ruled that it could not look into the lawfulness of the arrest per se as it would be already going into the merits of the case. ITLOS held in determining whether it has competence, it was limited to considering whether the prompt release procedure was triggered in accordance with Art. 292 paragraph 1, i.e. was there an arrest for a fisheries or pollution offence and did the coastal State fail to comply with its obligation to release the vessel and crew upon posting of a reasonable bond or financial security?

The prompt release procedure under Art. 292 is a stand-alone procedure. It is not a provisional measure. ITLOS’ jurisdiction in prompt release requests is not connected with case on the merits. The prompt release proceeding is not an appeal from any decision in a national court. Other than the 10-day waiting period, the request may be made even when the domestic proceedings are ongoing. It is a parallel proceeding at the international level.

The decision in a prompt release procedure is a final Judgment and cannot be appealed nor reviewed by a national court. The rationale for allowing this parallel, extraordinary proceeding at the international level is, on one hand economic, and on the other hand, based on humanitarian concerns. Thus according to ITLOS Judge Türk, “(t)he Prompt release procedure is designed to be an expeditious procedure with the objective of ensuring that a detained vessel is not immobilized until the completion of the domestic administrative or criminal procedures of the detaining State, which might take many months. Furthermore, important humanitarian considerations must be taken into account for shortening, as far as possible, the time during which the crew of the detained vessel is not permitted to leave the detaining State.” (Judge Türk, Declaration in Hoshinmaru case)

Art. 292 Paragraph 4

On the issues of reasonableness of the bond, UNCLOS does not provide for any criterion. The ITLOS thus developed its own set of criteria. In developing the criteria, the ITLOS stated that it was guided by the need to balance the interests between the coastal State and the Flag State. (Monte Confurco Case). The need to balance the interests means that the laws of the coastal State indeed are taken into consideration.

In the “Camouco” Case, for example, the ITLOS considered the following elements as relevant in order to assess the reasonableness of a bond: the gravity of the alleged offences was considered, the penalties imposed or imposable under the laws of the detaining state, the value of the detained vessel and of the cargo 23seized and the amount of the bond imposed by the detaining state and the form of the bond. All of these factors were taken by ITLOS as relevant facts. The criteria established in the “Camouco” are normally the criteria followed by ITLOS in other prompt release cases.

The approach taken by the ITLOS here is in accordance with UNCLOS Article 293(1), “a court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention”. Consistently, the ITLOS has stated that “When determining whether the assessment made by the detaining State in fixing the bond or other security is reasonable, the Tribunal will treat the laws of the detaining State and the decisions of its courts as relevant facts.”

In the “Hoshinmaru” Case, Russia, the detaining State, based the amount of the bond that it imposed on Japan on the maximum penalty that could be imposed on the Master and Owner which was 22 Million Rubles (approximately USD 862,000). The ITLOS found that this was not reasonable. Japan, the Flag State, argued a reasonable amount was 8 Million Rubles. The ITLOS decided that 10 Million Rubles was a reasonable amount but did not give an explanation. The ITLOS ruling in the “Hoshinmaru” Case could be considered a kind of exemption.

Release of vessel and crew as provisional measures

Under UNCLOS there are two types of provisional measures proceedings. Under Art. 290 paragraph 1, a court or tribunal that has jurisdiction over the merits of the case also has jurisdiction to prescribe provisional measures. Under Art. 287, as already mentioned, courts or tribunals that have jurisdiction over disputes under UNCLOS are ad hoc tribunals, the ICJ and ITLOS.

Under Art. 290, paragraph 5, there is another way for a provisional measure proceeding to be considered. A provisional measure request could be submitted to ITLOS pending the constitution of an arbitral tribunal that has jurisdiction over the merits of the case. The conditions for this to be available are the following: ITLOS considers that prima facie the arbitral tribunal which is to be constituted would have jurisdiction over the case and that the urgency of the situation requires the prescription of provisional measures.

There have been three cases to date involving the prescription of release of vessel as a provisional measure.

a. The M/T “San Padre Pio” Case (Switzerland v. Nigeria), Provisional Measures

The merits of this case was submitted to an arbitral tribunal by the parties. The vessel is bunker vessel flying the Flag of Switzerland and engaged in bunkering in the EEZ of Nigeria, among others. At the time of the provisional measures request, the vessel had been detained from January 2018. Charges were filed in the local courts against the Master and three officers but they were released upon provision 24of bail. However, they were not allowed to leave Nigeria without prior approval of court. Switzerland submitted the merits of the case to an arbitral tribunal on 6 May 2019 and at the same time filed a request for provisional measures at the ITLOS under Art. 290 para 5. The ITLOS ordered the release of the vessel as a provisional measure upon the posting of reasonable bond on 6 July 2019. The bond set was US$ 14,000,000, to be posted by Switzerland with the competent authority of Nigeria. It was ruled that the bond or other financial security should be in the form of a bank guarantee, issued by a bank in Nigeria or a bank having corresponding arrangements with a bank in Nigeria. In addition, the ITLOS require Switzerland to undertake an unequivocal undertaking that the Master and the three officers will be available and present at the criminal proceedings in Nigeria. The case on the merits was eventually discontinued as the parties reached a settlement and released the vessel and the crew.

b. The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), Provisional Measures

The Arctic Sunrise, which flies the flag of the Netherlands, is an icebreaker operated by Greenpeace International. On 18 September 2013, Greenpeace activists attempted to scale the Prirazlomnaya drilling platform, as part of a protest against Arctic oil production. This drilling platform is located in the Russian EEZ. The following day, on 19 September 2013, Russian authorities seized the Arctic Sunrise and towed it to Murmansk and detained the crew of 28 activists and two freelance journalists for three months. The Netherlands submitted the dispute to an arbitral tribunal on 4 October 2013 and pending constitution, submitted a request for the prescription of provisional measures to ITLOS on 21 October 2013. The ITLOS ordered to release of Arctic Sunrise and the crew upon the posting of a reasonable bond of 3,600,000 Euros.

c. The “Ara Libertad” Case (Argentina v. Ghana), Provisional Measures

The case of Frigate Ara Libertad is interesting because this is a warship of the Argentine Navy. Under international law, the vessel does not only have the nationality of Argentina, it represents Argentina. The facts of the case were as follows: The governments of Argentina and Ghana agreed that Ara Libertad would visit Ghana on 1 October 2012. Formal ceremonies were held in honour of the Ara Libertad attended by government, military officials and the diplomatic corps. The next day, one of Argentina’s creditors, NML Capital, successfully obtained an injunction of vessel detention from the Ghanaian High Court in Accra and the warship was served the order of injunction the next day on 2 October 2012. The Ghanaian authorities refused to release the warship upon the request of Argentina based on the order of injunction by Ghanian High Court in Accra.

Argentina submitted the case to arbitral tribunal on 29 October 2012 and pending constitution, submitted a request to ITLOS for provisional measures to release 25the vessel and the crew on 14 November 2012. The ITLOS ordered the release of Ara Libertad on 15 December 2012, declaring the urgency of the situation that warship enjoys “immunity under international law” and 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”. In view of the status of a warship under international law, the ITLOS did not require a bond to be posted.

Some observation on release of vessel as a provisional measure

The case of Ara Libertad is especially interesting as it was detained by Ghana not for an alleged offence under UNCLOS but for purposes very similar to arrest of ships in maritime law: 1) to acquire jurisdiction, 2) to obtain security for the satisfaction of a claim or 3) in execution of a decree. However, unfortunately for the creditor of Argentina, the warship while indeed an asset, has a special protected status under customary international law. This immunity is specifically confirmed in UNCLOS in Article 30.

The release of vessel as a provisional measure in the Mt Pio and Arctic Sunrise Cases were conditioned on the posting of a reasonable bond, which was criticized by some. No criteria were established for a reasonable bond. ITLOS also did not provide an explanation behind the amounts of bond imposed. The prompt release procedure under UNCLOS is limited only to two types of offences. Was there therefore an unjustified interference in coastal state jurisdiction in the EEZ in these two cases? From the point of view of Flag States in these two cases however, it must be underscored that it was alleged that the detaining States violated their freedom of navigation. It must be underscored that the EEZ is also the high seas; hence all States enjoy the freedom of navigation. The objective of the provisional measures is the preservation of the rights of the parties, and as alleged in these two Cases, the Flag States´ freedom of navigation.

Observations on prompt release procedure

The ITLOS jurisdiction to order the prompt release of vessel and crew is not an ancillary jurisdiction. Its competence is derived directly from UNCLOS, from the consent of States Members of the UNCLOS. Unlike the arrest of ships in commercial maritime claims, the Prompt release procedure has nothing to do with enforcement and recognition of judgement of other courts. However, similar to the arrest of ships in commercial maritime claims, the prompt release procedure upon posting of reasonable bond has some security function. The bond posted serves as a guarantee to be paid to the detaining State, as may be determined by a final judgment or decision of the appropriate domestic forum.

At this point, I wish to thank for your attention. Thank you again for this opportunity to join you today.

[*] Το κείμενο αποδίδει την προφορική εισήγηση της Καθηγήτριας κ. Suzette Suarez κατά την ημερίδα του περιοδικού Lex&Forum και των Εκδόσεων Σάκκουλα της 21.2.2022 και δημοσιεύεται εδώ κατόπιν εγκρίσεως της εισηγήτριας. Η αρχική απομαγνητοφωνημένη απόδοση του κειμένου έγινε από τον Στέφανο Μητροπάνο, απόφοιτο της Νομικής Σχολής του ΕΚΠΑ, μεταπτυχιακό φοιτητή στο Πανεπιστήμιο της Μάλτας.