Guest Post: Law Of The Sea Tribunal Implies A Principle Of Reasonableness In UNCLOS Article 73

[Craig H. Allen is the Judson Falknor Professor of Law and of Marine and Environmental Affairs at the University of Washington.]

On April 14, 2014, the International Tribunal for the Law of the Sea (ITLOS) issued its ruling in the M/V Virginia G case (Panama/Guinea-Bissau), Case No. 19.  The dispute arose out of  Guinea-Bissau’s 2009 arrest of the Panama-flag coastal tanker M/V Virginia G after it was detected bunkering (i.e., delivering fuel to) several Mauritanian-flag vessels fishing in the Guinea-Bissau exclusive economic zone (EEZ) without having obtained a bunkering permit.  The case presented a number of issues, including whether the 1982 UN Convention on the Law of the Sea (UNCLOS), to which both states are party, grants a coastal state competency to control bunkering activities by foreign vessels in its EEZ.

After disposing of objections raised over jurisdiction and admissibility (notwithstanding the parties’ special agreement transferring the case to ITLOS), the decision adds a substantial gloss to several articles of the UNCLOS, particularly with respect to Article 73 on enforcement of coastal state laws regarding the conservation and management of living resources in the EEZ. Among other things, Panama alleged that Guinea-Bissau violated each of the four operative paragraphs of Article 73 in its boarding, arrest and confiscation of the Virginia G and by seizing and withholding the passports of its crew for more than 4 months. The tribunal’s holding can be summarized as follows: 

Those who held out hope that the tribunal would, in this decision, breathe life into the UNCLOS Article 91 requirement that “there must exist a genuine link between the [flag] State and the ship” after the tribunal ruled in 2012 that Guinea-Bissau’s counterclaim that Panama had violated that requirement was admissible had those hopes dashed. The tribunal merely reaffirmed its 1999 holding in the M/V Saiga No. 2 case (see decision, paras. 109-113), effectively rendering non-justiciable the genuine link requirement, which was first imposed by the 1958 Convention on the High Seas to address growing concerns over lax flag of convenience states. In fairness, however, any omissions by Panama as the flag state appear to have been largely irrelevant to the Virginia G’s failure to obtain Guinea-Bissau’s authorization to bunker fishing vessels in its EEZ.

The tribunal went on to hold that the coastal state’s sovereign rights to conserve and manage living resources in the EEZ and to adopt laws and regulations establishing the terms and conditions for access by foreign vessels to the EEZ under Articles 56 and 62 empower the coastal state to regulate foreign vessels engaging in both fishing and fishing-related activities in its EEZ, including vessels that provision fishing vessels (paras. 207-222).  In reaching its decision, the tribunal observed that the list of permissible coastal state conservation and management measures in Article 62(4) is not exhaustive (para. 213). Any non-enumerated measure taken must, however, have a direct connection to fishing (para. 215).  Applying that interpretation, the tribunal upheld Guinea-Bissau’s requirement to obtain prior written authorization to engage in fishing-related activities in the EEZ (para. 235) and to assess a fee to defray the cost of processing the authorization (para. 234). By bunkering foreign fishing vessels without Guinea-Bissau’s written authorization, the Virginia G violated the coastal state’s laws.

The tribunal emphasized that because the coastal state’s competency over fishing and fishing-related activities like bunkering fishing vessels derives from its sovereign rights over living resources in the EEZ, it did not establish a more general right to regulate bunkering of vessels not engaged in fishing (para. 223).  The majority left open the question whether a coastal state can regulate non-fishing related bunkering activities in the EEZ under its Part XII jurisdiction to impose marine environmental protection measures applicable in the EEZ (para. 224). In a separate opinion, Judges Attard and Kelly indicated their belief that such regulations were within the coastal state’s competency.

Perhaps the most notable ruling by the tribunal concerns the coastal state’s competency to confiscate (i.e., forfeit) foreign vessels and their cargoes if found to be in violation of the coastal state’s living resource laws.  The tribunal noted that the list of enforcement measures available to the coastal state in Article 73(1) includes boarding and arrest of the vessel, but the article does not mention confiscation (para. 251). At the same time, the article expressly precludes only two forms of sanction: imprisonment (absent an agreement with the flag state) or any other form of corporal punishment. Observing that a number of states’ laws include provisions for confiscation (although not cited by the tribunal, they include the U.S. Magnuson-Stevens Fishery Conservation and Management Act, Endangered Species Act and Marine Mammal Protection Act), the tribunal interpreted Article 73(1) in light of that state practice and held that confiscation is not a per se violation of Article 73(1). The tribunal went on to adopt a case-by-case approach that amounts to a proportionality test.  More specifically, the tribunal held that a “principle of reasonableness” generally applies to all enforcement measures under Article 73 (para. 270).  Although the tribunal concluded that the  Virginia G’s violations were “serious” (para. 267), mitigating factors persuaded 14 of the tribunal’s 23 judges that confiscation of the vessel and its cargo was not “necessary” in this case “to ensure compliance with the laws and regulations adopted by” the coastal state (paras. 256, 269). One might reasonably question how a coastal state will ever demonstrate that a particular form of sanction is strictly “necessary.” One is also left wondering how the court’s interpretation of the “necessary” qualifier in Article 73 might be applied in a future case to that same qualifying term in Article 94(3), which requires a flag state to take such measures as are “necessary” to ensure safety at sea.

In other sections of the decision a majority of the judges took a somewhat narrow view of what constitutes “imprisonment” under Article 73(3) (paras. 297-311).  Additionally, the tribunal concluded that Article 225 (imposing a duty to avoid adverse consequences in the exercise of enforcement powers) applies, by its terms, to all enforcement activities by the coastal state under the convention, even though that article is in Part XII of the convention, which addresses measures to protect the marine environment. The tribunal also “reiterated” that general international law establishes a clear requirement that enforcement activities can be exercised only by duly authorized and identifiable officials of a coastal state and that their vessels must be clearly marked as being on government service (para. 342). Finally, the tribunal rejected Panama’s secondary argument that prohibitions in the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) applied to the actions by Guinea-Bissau’s enforcement vessels (see para. 376, citing the SUA Article 2 exclusion of warships and certain other state vessels).

On a divided vote, the tribunal assessed monetary reparations in favor of Panama totaling $388,506. In all, there were 13 separate declarations and dissenting opinions.

This is one of the 22 contentious cases presented to ITLOS since it was established in 1996. Decisions by the tribunal are final and must be complied with by all parties to the dispute; however, they have no binding force except between the parties and in respect of that particular dispute. UNCLOS Article 296.

Those weighing the relative merits of U.S. accession to the 1982 Law of the Sea Convention may find the tribunal’s decision in the M/V Virginia G case troubling. It is, for example, disconcerting that the tribunal has, on the one hand, determined that a flag state has unreviewable discretion to determine what constitutes a “genuine link,” while on the other the tribunal has, under a non-textual “principle of reasonableness,” annexed to itself the power to overrule a coastal state’s decision to impose a particular form of sanction on a tanker for an admittedly “serious” violation of the coastal state’s laws implementing its sovereign rights. In this regard, it is noteworthy that Professor Nordquist’s “Virginia Commentaries” (vol, II, para. 73.10(f)) highlights an important difference between Article 73(3) and Article 230, which, for most cases, expressly limits coastal state sanctions for marine pollution violations to “monetary penalties.”

Equally troubling is the scant evidence the tribunal considered before announcing that it had “no reason to question” whether Panama exercised effective jurisdiction and control over the tanker Virginia G.   At a time when the UN General Assembly is admonishing flag states that cannot meet their obligations to exercise effective jurisdiction and control over their vessels to essentially “get out of the flag state business” (UNGA RES/68/70, Feb. 27, 2014, para. 146), and the International Maritime Organization Assembly seeks to ensure flag states meet their obligations by making the formerly voluntary audit scheme mandatory, ITLOS appears willing to allow flag states to meet their effective jurisdiction and control obligation by reviewing applications, issuing the required  documents  and technical certificates and delegating annual safety inspections to third parties (paras. 113-118).