The latest case to come before the International Tribunal for the Law of the Sea raises some interesting questions about the availability of prompt release proceedings for vessels arrested for violating laws and regulations in the exclusive economic zone of a coastal state. The case has been initiated by Saint Vincent and the Grenadines following the arrest of the MV Louisa, a research vessel flying its flag. At the same time as invoking the dispute settlement procedures in Part XV of the Law of the Sea Convention, Saint Vincent and the Grenadines has requested provisional measures, including a request for the release of the MV Louisa and its tender, Gemini III. This dispute raises a number of issues concerning the law relating to the prompt release of vessels under the Convention.
The precise facts surrounding the arrest of the MV Louisa remain obscure. It appears that the MV Louisa had been authorized by the Spanish authorities to conduct sonar and cesium magnetic surveys of the seafloor of the Bay of Cadiz. These surveys took place during 2004 and 2005. The application alleges that in February 2006, the Spanish Guardia Civil arrested the MV Louisa and its tender “based on erroneous information regarding violations of Spain’s historical patrimony or marine environment laws” and the vessels have remained in detention ever since. The application suggests that the condition of the vessels, whilst sitting in port, has seriously deteriorated to such an extent that they pose a threat of pollution.
The application alleges violations of Articles 73, 87, 226, 245, and 303 of the Convention. What is particularly interesting is the citation of Articles 73 and 226, both of which relate to the prompt release of vessels by a coastal state on the posting of a reasonable bond. Prompt release is subject to a special procedure under Article 292 of the Convention which requires a court or tribunal to deal with an application without delay. However, this case is not brought under Article 292. Rather the request for the prompt release of the vessels is part of the request for provisional measures which includes a request for the Tribunal to order Spain to “release the vessel Louisa and its tender, the Gemini III … order the return of the scientific research, information and property held since 2006.”
The request for this provisional measure is based upon an alleged violation of Article 73 which the request argues places the Respondent under “an obligation to fix a reasonable bond or other security in respect of arrested vessels and their crew, and to release the vessels promptly upon the posting of that bond or security.” However, it is not clear that Article 73 imposes such a general obligation. Article 73 addresses the powers of a coastal state to take measure, including the arrest of vessels, to enforce its laws relating to the conservation and management of living resources in the EEZ and it is in this context that the obligation to promptly release vessels must be read. A similar obligation is found in Article 226 relating to vessels arrested for violating laws and regulations for the protection and preservation of the marine environment. Apart from these two fairly specific situations, there would not appear to be an obligation to promptly release vessels arrested by the coastal state for breaching laws and regulations in the EEZ. In a previous case, MV Saiga, Saint Vincent and the Grenadines tried to argue a “non-restrictive interpretation” of Article 292, suggesting that it applied to the arrest of any vessels by the coastal state for whatever reason. The driving force behind this argument was the suggestion “it would be strange that the procedure for prompt release should be available in cases in which detention is permitted by the Convention (articles 73, 220 and 226) and not in cases in which it is not permitted by it.” (para. 53 of the judgment in MV Saiga) By classifying the arrest of the MV Saiga as an act of enforcing fisheries laws and regulations, the Tribunal in that case avoided having to deal with this argument. However judges Park, Nelson, Chandrasekhara Rao, Vukas and Ndiaye rejected this approach in their dissenting opinion. The application and request for provisional measures in the present case would appear to be a second attempt to put forward that argument. Yet it would seem that the applicants face an uphill struggle in putting forward this argument.
It follows that the success of the request may depend on the reasons why the vessel was arrested. A number of scenarios can be anticipated.
If the MV Louisa was arrested for violations of laws to protect the marine environment, it could be argued that Spain was under a duty to set a reasonable bond for its release under Article 226 of the Law of the Sea Convention. However, it must be remembered that the provisional measures procedure serves a different purpose from the prompt release procedures. In the first place, provisional measures are intended to “preserve the rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.” (Law of the Sea Convention, Article 290(1)). In addition, in order to prescribe provisional measures, the tribunal must be convinced of their urgency. Thus, it may be more difficult to argue for prompt release as a provisional measure than if an application for prompt release had been brought under Article 292 of the Convention where none of these conditions apply.
If there was a different reason for the arrest, e.g. violations of rules regulating the conduct of marine scientific research, there may not be an obligation on the coastal state to release the vessel promptly. That is not to say that it is not valid to ask for the release of the vessel as a provisional measure pending the merits of the dispute. Indeed, a similar request was made in the request for provisional measures by Saint Vincent and the Grenadines in the MV Saiga case, alongside its application for prompt release under Article 292 of the Convention. Yet, as noted above, it would be necessary to show that the release of the vessel was appropriate to “preserve the rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision” and that it was urgent.
If the basis for the arrest was a violation of rules regulating the conduct of marine scientific research, the applicant has another hurdle to overcome. Some disputes concerning marine scientific research are explicitly excluded from the jurisdiction of a court or tribunal acting under the dispute settlement provisions of the Law of the Sea Convention. Article 297(2)(a) provides that:
Disputes concerning the interpretation or application of the provisions of this Convention with regard to marine scientific research shall be settled in accordance with [the compulsory dispute settlement procedures], except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute arising out of:
- the exercise by the coastal State of a right or discretion in accordance with article 246, or
- a decision by the coastal State to order suspension or cessation of a research project in accordance with article 253.
It is not entirely clear whether or not this article would prevent an application for the release of a research vessel that had been arrested for violating laws relating to the regulation of marine scientific research although there is an argument by such an arrest could be classified as a coastal state exercising its rights to regulate marine scientific research under article 246 of the Convention.
It would therefore appear that the applicants faces several difficulties in trying to obtain the release of the vessel, partly deriving from an uncertainty over the reasons for the arrest, and partly deriving from their choice of procedure. If this analysis is correct and there is no right to prompt release of research vessels, this may actually be a lacuna in the Convention. It is difficult to see why vessels arrested under the fisheries and pollution powers of the coastal state should be treated differently from other vessels subject to the jurisdiction of the coastal state in the EEZ.