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Response to the Request for Provisional Measures in the M/V Louisa Case

I have previously reported on this blog (here) on the dispute between Saint Vincent and the Grenadines on the one hand and Spain on the other hand concerning the arrest and detention the M/V Louisa and its tender, the Gemini III.  The International Tribunal for the Law of the Sea gave its order on provisional measures today (23 December 2010).  In a pretty insipid Order, the Tribunal refused to indicate the provisional measures which had been requested by Saint Vincent and the Grenadines.  Whilst deciding that it did have prima facie jurisdiction over the dispute, the Tribunal held that “the circumstances, as they now present themselves to the Tribunal, are not such as to require the exercise of its powers to prescribe provisional measures under article 290, paragraph 1, of the Convention.”
Far more interesting than the Order of the Tribunal are the dissenting opinions by four of the eminent judges on the Tribunal.  Not only do these dissenting opinions offer an often stinging critique of the Tribunal’s Order, they also offer some insights into how the dispute on the merits could be decided.
The first thing that appears from the dissenting opinions is the inability of the Tribunal to deal with allegations in relation to the Gemini III, the tender of the M/V Louisa due to lack of jurisdiction.  In its Order, the Tribunal rather blandly notes that the Gemini III was not flying the flag of Saint Vincent and the Grenadines but that “the issue of the status of the “Gemini III” should be examined at a future stage of the proceedings.” (para. 45)  In contrast, some of the dissenting judges leave no doubt that these allegations are irrelevant to the case before them.  Judge Wolfrum makes clear that in his opinion, “the Tribunal has no jurisdiction to entertain a case on the merits as far as Gemini III is concerned.”  (para. 16 of his dissenting opinion) This conclusion is based on the declaration made by Saint Vincent and the Grenadines whereby it accepts the jurisdiction of the tribunal for “disputes concerning the arrest or detention of its vessels.”  (emphasis added)  He also rejects the idea that the two ships can be treated as a single unit because “that would mean that the Applicant would have the right to exercise its jurisdiction under article 94 of the Convention in respect of a vessel under the flag of another State.” (para. 16 of his dissenting opinion)
The dissenting opinions also disagree with the Tribunal on the issue of whether the applicant had satisfied Article 283 of the Convention which provides as follows:

“When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.”

Citing its previous jurisprudence, the Tribunal reaffirmed that “a State Party is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted.” (para. 63)  The majority of the Tribunal was satisfied that the requests for information by the Saint Vincent and Grenadine maritime authorities, as well as the note verbale to the Permanent Mission of Spain to the United Nations were sufficient to satisfy the requirements of the Convention.
For his part, Judge Wolfrum disagreed that the measures taken by Saint Vincent and the Grenadines amounted to an exchange of views for the purposes of Article 283(1).  His criticism was twofold. Firstly, he asserted that “Neither the maritime administration of the Applicant nor the port authorities of the Respondent can be regarded as being empowered to conduct diplomatic exchanges on behalf of their respective States.”  (para. 28 of his dissenting opinion)  It is not clear on what basis Judge Wolfrum makes this classification of the state organs of the two states and he refers neither to international law nor national law to support this point.  There would seem to be no reason of principle why these organs of state should not be permitted to conduct diplomatic exchanges if a dispute falls within their area of competence.  This reflects the fact that foreign policy is no longer concentrated in a single department of government but rather many governmental departments are involved in diplomacy.  A stronger criticism from Judge Wolfrum is that none of the communications from Saint Vincent and the Grenadines invited an exchange of views concerning a dispute under the Convention.  This is reiterated by Judge Treves who notes that “[the communications] do not set out claims or invoke rights and thus cannot be considered an “exchanges of views” regarding the settlement of the dispute “by negotiation or other peaceful means.” (para. 11 of his dissenting opinion)  Moreover, he notes that the Note Verbale was sent before Saint Vincent and the Grenadines had even submitted its declaration accepting the jurisdiction of the Tribunal for disputes under the Convention.  It can be implied from his dissenting opinion that the fact that Saint Vincent and the Grenadines accepted the jurisdiction of the Tribunal only two days before submission of the Application means that they cannot be said to have seriously pursued an exchange of views before initiating the dispute.
In his dissenting opinion, Judge Treves not only suggested that an exchange of views had not taken place but he also held that there was no dispute at all concerning the interpretation and application of the Convention at the time at which the application was made because “it was only on that date, in the text of the Application, that the Convention was mentioned for the first time.” (para. 7 of his dissenting opinion)
Judge Golytsyn also asserted in his dissenting opinion that “The contacts with the Spanish authorities by the American owner of the vessel and its representatives, mentioned by the Applicant in the written and oral proceedings, cannot be deemed to constitute “an exchange of views” between the parties within the meaning of article 283, paragraph 1, of the Convention.” This position reflects the fact that the dispute settlement provisions of the Law of the Sea Convention are intended to apply to disputes between states and it is the flag state which brings a claim on behalf of the vessel.  It is not sufficient for a flag state to authorize a vessel owner to bring a claim in its place.  This can be contrasted with the procedure for the prompt release of vessels where “an application for release may be made only by or on behalf of the flag State of the vessel.” (Law of the Sea Convention, Article 292(2)) (emphasis added)
Another ground for the dissenting judges to refuse the request for provisional measures was a lack of prima facie jurisdiction.  Analysing those provisions relied upon by the applicant, the dissenting judges expressed serious doubts about the merits of the claim.  In the words of Judge Wolfrum, “The Application cannot be grounded on any of the provisions of the Convention referred to, which renders it not plausible.”  (para. 26 of his dissenting opinion)  Similarly Judge Golytsin held in his dissenting opinion that “the provisions of the Convention invoked by the Applicant are of no relevance to the detention of the Louisa and the dispute between the parties does not relate to the interpretation or application of the aforementioned provisions of the Convention.” These opinions leave the applicants a lot of work to do in order to convince the Tribunal of the strength of its claims at the merits of the hearing.

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