THE M/V "SAIGA' (NO.

2)
CASE
(SAINT VINCENT AND THE
GRENADINES V. GUINEA)

BY ANOUSHKA SEN AND PRISHA SHARMA

 FACTS
M/V Saiga was an oil tanker, provisionally registered in Saint Vincent & the Grenadines
(1997).
Saiga was owned by Tabona Shipping (Cyprus), managed from Scotland, chartered to a Swiss
company.
The Vessel Carried 5,400 MT gas oil, owned by Addax BV (Switzerland) and the crew onboard
was mainly Ukrainians with 3 Senegalese workers.
On 27 Oct 1997 it bunkered three licensed fishing vessels in Guinea’s EEZ (22 nauntical miles
off Alcatraz Island).
On 28 Oct 1997 while drifting outside Guinea’s EEZ, the vessel was attacked by Guinean
patrol boats, fired upon, boarded, and forcibly taken to Conakry.
The Crew’s documents were seized, two were injured and cargo confiscated. The Master was
prosecuted for smuggling, contraband, and tax evasion.
 FACTS
After the arrest, Saint Vincent & the Grenadines (flag State) protested and argued that
Guinea’s actions violated United Nations Convention on the Law Of the Sea (UNCLOS)
freedoms of navigation.
On 13 Nov 1997 Saint Vincent filed a request for Prompt Release under Art. 292 UNCLOS.
International Tribunal for the Law Of the Sea (ITLOS) ordered release on 4 Dec 1997.
Guinea delayed release and continued prosecution of Master and the conflict kept deepening.
On 22 Dec 1997, Saint Vincent initiated Annex VII arbitration against Guinea under
UNCLOS.
In Jan 1998 Both States agreed (by Exchange of Letters) to transfer the dispute to the ITLOS.
On 13 Jan 1998 Saint Vincent also requested Provisional Measures under Art. 290 UNCLOS.
ITLOS accepted jurisdiction and the case proceeded on merits, damages, and admissibility
issues.
 LEGAL ISSUES
1. Jurisdiction
2. Admissibility
3. Nationality & Registration of the Ship
4. Genuine Link Requirement
5. Exhaustion of Local Remedies
6. Nationality of Claims (Crew and Cargo Owners)
7. Legality of the Arrest (EEZ enforcement & customs
laws)
8. Right of Hot Pursuit under Article 111 UNCLOS
9. Use of Force in Arrest
10. Civil Liability Summons and Compliance with Prompt
Release (Article 292)
11. Reparation and Compensation
 ISSUE 1: JURISDICTION
Jurisdiction is about whether the tribunal can
rule at all.
The dispute was first sent to arbitration under
Annex VII, but the two states later agreed (the 1998
Agreement) to transfer the case to ITLOS.
The 1998 Agreement says the case should be treated
as if it was submitted to ITLOS on 22 Dec 1997.
ITLOS checked that both states agreed to this
transfer and concluded that the 1998 Agreement
along with UNCLOS articles 286–288 gives ITLOS
the jurisdiction to decide the case
 ISSUE 2: ADMISSBILITY
Can Guinea Object?
SVG argued that the 1998 Agreement only let Guinea raise one jurisdictional
objection. All other admissibility objections are ruled out. Guinea also missed
90-day deadline under Rule 97.

Guinea replied that it never gave up its right to challenge admissibility. Rule 97
doesn’t apply here (proceedings began June 1998 with the Memorial).

Tribunal found that the Agreement did not remove the general right to raise
admissibility objections. Rule 97 deadline applies only to preliminary objections
in separate phase. Since both parties agreed to a single-phase procedure,
Guinea’s objections are receivable.
 ISSUE 3- ADMISSIBILITY OBJECTION 1:
NATIONALITY & REGISTRATION OF THE SAIGA
Guinea Claimed that Saiga was not validly registered since its provisional certificate
expired in Sept 1997, and a permanent one was issued later in Nov 1997. Thus SVG
had no valid nationality and is essentially “stateless”.

SVG’s Replied saying that the Provisional registration was valid for 1 year under
Merchant Shipping Act.
a.Ship remains registered unless formally deleted (not the case here).
b.And there is Evidence for valid registration- registry entries, on-board marks
(“Kingstown”), consistent conduct as flag State, officials’ declarations.

Thus the Tribunal reasoned that the Nationality of ships is a matter of domestic law
and factual evidence (Art. 91 UNCLOS).
Here, SVG met the burden of proof and Guinea failed to rebut. Guinea itself treated
SVG as flag State in earlier proceedings. Hence, Saiga had valid SVG nationality and
the objection is rejected. SVG keeps standing and the case proceeds on merits.
 WHAT IS GENUINE LINK?

Comes from UNCLOS Art. 91(1): every State shall fix conditions for granting
nationality to ships, but there must exist a “genuine link” between the State and
the ship.
The idea is nationality of convenience (“flags of convenience”) shouldn’t be
abused and a ship must have some real connection to its flag State.
In practice the “genuine link” is about effective exercise of flag State jurisdiction
and control, not ownership.
 ISSUE 4:GENUINE LINK
1. Guinea argued that there was no genuine link between the M/V Saiga and SVG.

2. Without such a link, Guinea claimed that SVG’s claim regarding violation of
navigation rights was inadmissible.

3. “A State cannot fulfil its obligations as a flag State under the Convention with
regard to a ship unless it exercises prescriptive and enforcement jurisdiction over the
owner or, as the case may be, the operator of the ship.” Guinea contends that, in the
absence of such jurisdiction, there is no genuine link between the ship and SVG and
so it is not obliged to recognise the claims of SVG in relation to the ship.
4. SVG replied that the Convention does not require a genuine link as a precondition
for ship nationality or for a flag State to bring international claims.

5. SVG stated that there was Evidence of a genuine link:

Saiga’s owner represented by a company in Saint Vincent and the Grenadines.
Supervision by Vincentian authorities to ensure compliance with international
conventions (SOLAS, MARPOL).
Annual surveys by authorized classification societies.
Preference for Vincentian nationals for crew.
Active protection efforts by the State internationally.
6. The Tribunal rejected Guinea’s objection and recognised Saiga’s
nationality

It argues that a genuine link connection was absent in the present case
because the arrest of the ship took place outside the territorial jurisdiction
of Guinea and the ship was brought within the jurisdiction of Guinea by
force. And Presence of the ship in the exclusive economic zone did not
establish a jurisdictional connection with Guinea
 ISSUE 5: NON-EXHAUSTION OF LOCAL REMEDIES

1. Guinea claimed that Saint Vincent and the Grenadines’ claims were
inadmissible because local remedies were not exhausted (Article 295 of
UNCLOS).
2. The owners of the Saiga, as well as the owners of the confiscated cargo of
gas oil, had the right to institute legal proceedings to challenge the seizure of
the ship and the confiscation of the cargo, but neither of them exercised this
right.
3. They argued that the Master did not appeal the Court of Appeal of Conakry
judgment and owners could have used local procedures.
4. SVG argued that the exhaustion rule does not apply because it violates its
rights as a flag State under the Convention, including the right to have its
vessels enjoy the freedom of navigation and other internationally lawful uses
of the sea related to that freedom, as set out in Articles 56 and 58 and other
provisions of the Convention.

5. Violations included:
Attack on Saiga outside Guinea’s EEZ, no justification for hot pursuit.
Illegal arrest, detention, cargo discharge, prosecution, fines, seizure.
Non-compliance with 4 December 1997 judgment.
6. ITLOS found that the rule that local remedies must be exhausted applies
only where there is a jurisdictional connection between the State against which
a claim is brought and the person in respect of whom the claim is advanced. It
argues that this connection was absent in the present case and the ship was
brought within the jurisdiction of Guinea by force. Presence of the ship in the
exclusive economic zone did not establish a jurisdictional connection with
Guinea.
 NATIONALITY OF CLAIMS

Each State determines conditions for granting nationality to ships. A ship has
nationality of the State whose flag it flies. Must be a “genuine link.”

Article 91 of the United Nations Convention on the Law of the Sea

(UNCLOS) establishes the principles for the nationality of ships, requiring
each state to set the conditions for granting its nationality, registering ships,
and authorizing them to fly its flag.
 ISSUE 6: NATIONALITY OF CLAIMS

1.Guinea argued that Saint Vincent and the Grenadines could not bring
claims on behalf of persons who were not its nationals, such as the master
and crew of the M/V Saiga, and while this objection was later partially
withdrawn, it was still maintained with respect to the crew and others on
board.
2.In response, Saint Vincent and the Grenadines contended that a flag State
has the right to protect not only the ship but also all persons on board,
regardless of their nationality.
3. The Tribunal, analysing relevant provisions of the Convention including
Articles 94, 106, 110(3), 111(B), 217 and 292, held that the rights of the flag
State apply broadly to the ship, its crew, owners and operators without any
requirement of common nationality.

4. It further observed that modern maritime transport operates with

multinational crews, and requiring separate protection for each nationality
would be impractical and contrary to the system established under
international law. Accordingly, the Tribunal rejected Guinea’s objection and
confirmed that claims for non-nationals were admissible.
 ISSUE 7: LEGALITY OF THE ARREST (EEZ ENFORCEMENT &
CUSTOMS LAWS)

Saint Vincent and the Grenadines claims that the arrest and actions against the
Saiga were illegal, as the ship did not violate any Guinean laws that UNCLOS
(United Nations Convention on the Law of the Sea) allows to be applied.

Guinean Laws Invoked:

· Law L1941007 – banned unauthorised fuel activities.
· Merchant Marine Code – claimed sovereign rights over EEZ resources.
· Customs Code – extended customs radius up to 250 km.
· Penal Code – penalties for fraudulent import/export.
 SAINT VINCENT AND THE GRENADINES’ ARGUE:

Guinea’s customs radius is not part of its national or customs territory.

EEZ powers cannot go beyond Articles 56 & 58 of UNCLOS.
Supplying fuel (bunkering) is part of lawful navigation, not smuggling.

GUINEA’S DEFENCE:
EEZ is sui generis, so customs laws can apply there.
Claimed a “state of necessity”, but Tribunal said conditions were not met
(no grave/imminent peril).
HELD BY THE TRIBUNAL: GUINEA’S ARREST OF THE SAIGA
WAS ILLEGAL, SINCE EEZ LAWS CANNOT OVERRIDE
UNCLOS.

Municipal laws are facts, but must comply with UNCLOS.

Guinea’s extension of customs laws into the EEZ violated Articles 56 & 58.

Arrest, detention, prosecution, and seizure were contrary to UNCLOS.

Tribunal did not decide on offshore bunkering rights; it ruled only on this
incident.
 WHAT IS HOT PURSUIT?

Coastal State can pursue and arrest a foreign ship if it violates laws in its
territorial sea or contiguous zone, but the pursuit must begin within those
waters and be continuous.

Article 111 of UNCLOS states that-

“The hot pursuit of a foreign ship may be undertaken when the competent
authorities of the coastal State have good reason to believe that the ship has
violated the laws and regulations of that State.”
 ISSUE 8: RIGHT OF HOT PURSUIT UNDER ARTICLE 111
UNCLOS

Saint Vincent’s claim that Guinea did not lawfully exercise hot pursuit. The
Saiga had not violated any applicable laws. SVG countered that Saiga was
arrested outside Guinea’s EEZ and hot pursuit conditions were not met.

Guinea argued it was exercising hot pursuit against Saiga for customs
violations.

Claimed pursuit started on 27–28 October, with signals allegedly given.

 TRIBUNAL HELD: GUINEA FAILED TO MEET CUMULATIVE
CONDITIONS FOR HOT PURSUIT. ARREST OUTSIDE THE EEZ
COULD NOT BE JUSTIFIED.
The Tribunal examined this carefully. It found that the conditions for hot
pursuit are cumulative, meaning all must be satisfied: the pursuit must start
within internal waters, territorial sea, contiguous zone, or EEZ; it must not be
interrupted; and visual or auditory signals must be given at the start.

The Tribunal found that:

• On 27 October, Guinea only had a suspicion that a tanker might have
violated its laws. No signals were given, and in fact, pursuit was interrupted
when a patrol boat was recalled.
 TRIBUNAL HELD: GUINEA FAILED TO MEET CUMULATIVE
CONDITIONS FOR HOT PURSUIT. ARREST OUTSIDE THE EEZ
COULD NOT BE JUSTIFIED.
On 28 October, Guinea’s claim that signals were given was not supported by
evidence. Witnesses on the Saiga denied seeing or hearing any. And even if
signals were given, they were not at the start of pursuit, as required by Article
111.

Most importantly, the Tribunal had already concluded that the Saiga had not
violated Guinean laws under the Convention.

Therefore, Guinea’s hot pursuit claim failed. The Tribunal ruled that the arrest
was not justified under Article 111.
 WHAT IS USE OF FORCE?

Under international law, States must use restraint; excessive or

disproportionate force in enforcement actions is unlawful.

UNCLOS prohibits the use of force by establishing that the high seas shall be
reserved for peaceful purposes (Article 88) and requiring states to respect this
prohibition when exercising their rights under the Convention. Article 301
reiterates the obligation to refrain from the threat or use of force against the
territorial integrity or political independence of any state.
 ISSUE 9: USE OF FORCE
Saint Vincent’s claim: that Guinea used excessive force against an unarmed, slow-
moving tanker.

Guinea’s Defence: The Said force was a last resort and denied using heavy
gunfire.

Tribunal’s Analysis: Guinea’s use of force was excessive and violated human rights
obligations.
Force must be necessary, reasonable, and humane.
The Saiga could have been boarded peacefully.
Using live ammunition was unjustified and caused damage and injuries.
 ARTICLE 292 OF UNCLOS

To strike a balance between the interests of the coastal State and those of the
flag State, Article 292 of the UNCLOS empowers the International Tribunal
for the Law of the Sea (ITLOS) to determine whether or not the detaining
State has complied with a provision of the Convention for the prompt release
of the vessel or the crew upon the posting of a reasonable bond or other
financial security.
 ISSUE 10: SCHEDULE OF SUMMONS & DELAY IN
RELEASE
Saint Vincent’s claim: that Guinea used excessive force against an unarmed, slow-
moving tanker.

Guinea’s Defence: The Said force was a last resort and denied using heavy
gunfire.

Tribunal’s Analysis: Guinea’s use of force was excessive and violated human rights
obligations.
Force must be necessary, reasonable, and humane.
The Saiga could have been boarded peacefully.
Using live ammunition was unjustified and caused damage and injuries.
 COMPLIANCE WITH PROMPT RELEASE (ARTICLE
292)

There were also two smaller issues. First, Guinea issued a summons naming Saint
Vincent and the Grenadines as if it were a defendant in local proceedings. The
Tribunal said this was inappropriate, but not a violation of rights.

Second, the Saiga was released 80 days after a bank guarantee was posted, as
ordered by the Tribunal in its provisional measures judgment. Although this was a
long delay, the Tribunal did not place full blame on Guinea.
 ISSUE 11: REPARATION AND COMPENSATION
In international law, when a State commits a wrongful act, it must make reparation.
Finally, the Tribunal turned to reparation. It awarded a total of 2.1 million US
dollars plus interest, covering:
Damage to the Saiga,
Loss of charter hire,
Detention expenses,
Value of the gas oil,
Detention of the Master and crew,
Medical expenses, and
Pain and suffering.
The Tribunal rejected claims for loss of registration revenue, as there was no
evidence. It also noted that declaring Guinea’s actions unlawful was itself a form of
reparation.
Each party was ordered to bear its own legal costs.
THANK YOU