University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection

Transcription

1 The MN Saiga Case (ITLOS, ) The Saiga, an oil tanker flying the flag of St. Vincent and the Grenadines, was thought to be engaged in smuggling off the coast of Guinea, in West Africa. [It was accused of bunkering fishing boats in the coastal waters and supplying them with gasoil.] The Guineans gave chase, and captured the vessel outside the Guinean Exclusive Economic Zone. [The second officer, Sergiy Klyuyev received bullet fragments in his arm during the boarding, and one other crew member was also injured.] The vessel and crew were brought into Conakry, Guinea. By a vote of 12-9, the Tribunal ordered the crew and vessel released, but only upon the deposit of its cargo of gasoil (worth US$l,OOO,OOO), plus US$400,OOO as security.

2 The MIV Saiga Case (Saint Vincent and the 170. It is a well-established rule of international law that a State which suffers damage as a result of an internationally wrongful act by another State is entitled to obtain reparation for the damage suffered from the State which committed the wrongful act and that "reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed" (Factory at Chorzow, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47).

3 The M/V Saiga Case (Saint Vincent and the 175. After a careful scrutiny of invoices and other documents submitted, the Tribunal decides to award compensation in the total amount of US$ 2,123,357 (United States Dollars Two Million One Hundred and Twenty-Three Thousand Three Hundred and Fifty-Seven) with interest, as indicated below: (a) Damage to the Saiga, including costs of repairs, in the sum of US$ 202,764; with interest at the rate of 6%, payable from 31 March 1998; (b) Loss with respect to charter hire of the Saiga, in the sum of US$ 650,250; with interest at the rate of 6%, payable from 1 January 1998; (c) Costs related to the detention of the Saiga in Conakry, in the sum of US$ 256,892; with interest at the rate of 6%, payable from 1 January 1998; (d) Value of 4, metric tons of gas oil discharged in Conakry, in the sum of US$ 875,256; with interest at the rate of 8%, payable from 28 October 1997; (e). Detention of Captain Orlov, the Master, in the sum ofus$ 17,750; with interest at the rate of 3%, payable from 1 October 1999; (f) Detention of members of the crew and other persons on board the Saiga, in the sum of US$ 76,000, computed as specified in the Annex; with interest at the rate of 3%, payable from 1 October 1999; (g) Medical expenses of Second Officer Klyuyev, in the sum of US$ 3,130; with interest at the rate of 6%, payable from 1 January 1998; (h) Medical expenses of Mr. Djibril Niasse, in the sum ofus$ 6,315; with interest at the rate of 6%, payable from 1 January 1998; (i) Injury, pain and suffering of Second Officer Klyuyev, in the sum of US$ 10,000; with interest at the rate of 3%, payable from 1 October 1999; (j) Injury, pain, suffering, disability and psychological damage of Mr. Djibril Niasse, in the sum of US$ 25,000; with interest at the rate of 3%, payable from 1 October University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection

4 The MIV Saiga Case (Saint Vincent and the Was Guinea justified in invoking the defense of a "state of necessity"? When is this defense legitimate? (a) When "the act was the only means of safeguarding and essential interest of the State against a grave and imminent peril," and (b) When "the act did not seriously impair an essential interest of the State towards the obligation existed." What was Guinea's interest? Maximizing its tax revenues. "[H]owever essential Guinea's interest in maximizing its tax revenue from the sale of gas oil to fishing vessels, it cannot be suggested that the only means of safeguarding that interest was to extend its customs laws to parts of the exclusive economic zone."

5 The MIV Saiga Case (Saint Vincent and the Did Guinea use excessive force when seizing the ship? Gunfire was used from the patrol boat and "indiscriminately" while on the deck, including "to stop the engine of the ship." This activity led to "severe injuries to two of the persons on board" and "considerable damage... to the ship and to vital equipment in the engine and radio rooms." What standard governs the use of force? "The degree of force used shall not exceed that reasonably required in the circumstances" Straddling Stocks Agreement, Art. 22(1)(0. When can gunfire legitimately be utilized?

6 The MN Saiga Case (Saint Vincent and the Guinea argued that it was entitled to apply its customs laws in the exclusive economic zone to prevent the "considerable fiscal losses a developing country like Guinea is suffering from illegal off-shore bunkering in its exclusive economic zone." Guinea made "references also to fisheries and environmental interests," but did not argue that it had to close down the "off-shore bunkering" in order to protect its fisheries or its environment. Would it have been more successful if it had made such an argument??

7 The MN Saiga Case (Saint Vincent and the What is the holding of the Tribunal? A country can apply its customs laws in its territorial sea, but not in the EEZ, except with regard to artificial islands, installations and structures. Can this case be read for the proposition that all activities by noncoastal states that are not explicitly excluded by the Convention's text are permitted in the EEZ? Or, can a coastal state still argue that it is entitled to prohibit certain activities in order to protect its fisheries resources and its environment?

8 The MIV Saiga Case (Saint Vincent and the Was Guinea justified in invoking the defense of a "state of necessity"? When is this defense legitimate? (a) When "the act was the only means of safeguarding and essential interest of the State against a grave and imminent peril," and (b) When "the act did not seriously impair an essential interest of the State towards the obligagion existed." What was Guinea's interest? Maximizing its tax revenues.

9 The MN_Saiga Case.(ITLOS, ) The Saiga, an oil tanker flying the flag of St. Vincent and the Grenadines, was thought to be engaged in smyggling off the coast of Guinea, in West Africa. [It was accused of bunkering fishing boats in the coastal waters and supplying them with gasoil.]. The Guineans gave chase, and captured the vessel outside the Guinean Exclusive Economic Zone. [The second officer, Sergiy Klyuyev received bullet fragments in his arm during the boarding, and one other crew member was also injured.] The vessel and crew were brought into Conakry, Guinea. By a vote of 12-9, the Tribunal ordered the crew and vessel released, but only upon the de osit of its car 0 of gasoil (worth US$l ), plus US$400 ooq as security.