25 June 2019 By Emilie McConaughey

On 21 May 2019, Switzerland filed a request for provisional measures with the International Tribunal for the Law of the Sea (the “Tribunal”) in support of arbitration proceedings recently initiated against Nigeria. While little information on the arbitration is known, the proceedings relating to the provisional measures are public and a hearing was held on 21 and 22 June 2019 in Hamburg, where the Tribunal is seated.[1]

The dispute arose when the Nigerian Navy intercepted and arrested on 24 January 2018 the M/T “San Padre Pio”, an oil tanker of the shipping company ABC Maritime and chartered by Argo Shipping and Trading, flying the Swiss flag, as well as her 16-member Ukrainian crew and 5000-ton cargo. After a year of diplomatic efforts to obtain the release of the vessel, crew and cargo from Port Harcourt in Nigeria, Switzerland initiated on 6 May 2019 arbitration proceedings under the United Nations Convention on the Law of the Sea (the “Convention”), to which both Switzerland and Nigeria are parties.

According to Nigeria, the vessel was seized as it was bunkering oil in violation of Nigerian law. In its endeavour to combat illegal oil trafficking, which has adverse environmental, human and economic consequences, Nigeria granted its Navy competence in relation to bunkering within Nigeria’s territorial waters and in its exclusive economic zone (the “EEZ”). Nigeria therefore considers that it acted in the exercise of its sovereign right to enforce its laws, and judicial proceedings are ongoing before domestic courts.[2] According to Switzerland, Nigeria’s conduct, taken without the flag State’s consent, constitutes a breach of international law, namely the freedom of navigation and a flag State’s right to exercise exclusive jurisdiction.[3] Switzerland also invokes the 2006 Maritime Labour Convention, the 1966 International Covenant on Civil and Political Rights, and customary international law.

When it commenced the arbitration proceedings, Switzerland requested Nigeria to take measures necessary to lift any “restrictions on the liberty, security and movement of the “San Padre Pio”, her crew and cargo”.[4] As such request proved vain, Switzerland turned to the Tribunal to prescribe provisional measures pending constitution of the arbitral tribunal.[5] Any provisional measure ordered by the Tribunal can subsequently be modified, revoked or affirmed by the arbitral tribunal constituted to hear the dispute. Nigeria argued in response that the rights Switzerland seeks to protect are not plausible as they do not apply to the specific facts of this case.[6]

The Tribunal can order provisional measures if two conditions are met.

First, the Tribunal ascertains prima facie the jurisdiction of the arbitral tribunal that is being constituted. This notably entails verifying that the parties sought a settlement of the dispute through “negotiation or other peaceful means” under Article 283(1) of the Convention and that the claims are at least plausible.

Second, the Tribunal must determine whether the requested measures are appropriate to “preserve the respective rights of the parties” under Article 290(1) of the Convention. As Switzerland sets out in its request for provisional measures, this provision has consistently been interpreted to imply that “a real and imminent risk that irreparable prejudice could be caused to the rights of the parties.”[7] In the present case, Switzerland argues that the risks incurred are real and imminent considering the lack of proper maintenance of the vessel and its steadily decreasing value. Furthermore, the safety of the crew is at stake where they are detained without access to medical assistance and where “piracy and armed robbery at sea are prevalent in the Gulf of Guinea”.[8] According to Nigeria, there is no urgency as there is no irreparable harm that would arise “in the short period of time pending the constitution and functioning of the Annex VII arbitral tribunal”.[9]

Quoting the M/V “Virginia G” (Panama/Guinea Bissau) judgment of 14 April 2014, Switzerland notes that the prejudice comprises the loss incurred by the entire unit represented by the vessel, i.e. not only the vessel, crew and cargo but also “its owner and every person involved or interested in its operations [which] are to be treated as an entity linked to the flag State”.[10] The harm incurred by Nigeria’s detention of the vessel for such a prolonged time thus includes the economic damage of the “owner and charterer”, including “losses of profits and business opportunities”.[11] Switzerland also invokes the potential environmental harm, such as would result if the vessel were to be abandoned on the coast.

The Tribunal indicated that it expects to issue an order in the matter on 6 July 2019.

This case will bring welcome clarifications regarding the allocation of jurisdiction between coastal and flag States for actions taken within the EEZ, as well as in relation to compensation that may be claimed following the prolonged blocking of a vessel. The EEZ is an area located between the high sea and the territorial waters of coastal States, e. an area that falls outside the exclusive jurisdiction of the coastal State, except for rights related to the economic exploitation and exploration of the zone as provided in Part V of the Convention. The issue of compensation is of particular relevance not only where Switzerland provides financial guarantees for its maritime commercial fleet, which includes the M/T “San Padre Pio”, but also considering that major shipping and chartering companies are registered in Switzerland.

[1] (where the parties’ submissions and the hearing webcast and transcript can be found). See also J. Balantyne, “Switzerland seeks release of vessel and crew from Nigeria”, in GAR, 23 May 2019.

[2] Nigeria’s Statement in Response dated 17 June 2019, para. 1.4 and Chapter 2.

[3] Switzerland’s Request for Provisional Measures dated 21 May 2019, para. 28 (listing the claims made in the notification).

[4] Id. at para. 4.

[5] Id. at para. 53 (listing the requested provisional measures under Article 290 of the Convention).

[6] Nigeria’s Statement in Response, Chapter 3-II.

[7] Switzerland’s Request for Provisional Measures,  para. 22.

[8] Id. at paras. 32-46, notably paras 38-42. See also (describing the recent armed attack on the San Padre Pio which led to the injury of one of the onboard Nigerian naval guards).

[9] Nigeria’s Statement in Response, para. 3.25.

[10] Switzerland’s Request for Provisional Measures, para. 24.

[11] Id. at para. 44.