The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain)
On 28 May 2013, the International Tribunal for the Law of the Sea delivered its judgment on The M/V “Louisa” Case between Saint Vincent and the Grenadines and the Kingdom of Spain. The Tribunal found, by 19 votes to 2, that no dispute concerning the interpretation or application of the United Nations Convention on the Law of the Sea (LOSC) existed between the Parties at the time of the filing of the Application and that, therefore, it had no jurisdiction ratione materiae to entertain the case.
The dispute concerned the detention of the vessel M/V “Louisa”, flying the flag of Saint Vincent and the Grenadines, by the Spanish authorities. Between 20 August and 29 October 2004 the vessel was allegedly conducting surveys of the sea floor in the internal waters and territorial sea of Spain with a view to locating oil and gas deposits, on the basis of a permit issued by the Spanish Ministry of the Environment.
Voluntarily docked at the port of El Puerto de Santa María from 29 October 2004, the M/V “Louisa” was boarded, searched and detained by the Spanish authorities on 1 February 2006. Pursuant to Spain, during the search of the vessel, “diverse pieces of undersea archaeological origin were found, as well as five assault rifles, considered weapons of war, and a handgun”. As the M/V “Louisa” was the instrument for carrying out the crime of possession and depositing of weapons of war and the continued crime of damaging Spanish historical patrimony, it was seized on the basis of an indictment issued by the Court of Criminal Investigation No. 4 of Cadiz. Four persons were also arrested. On the same day, the Spanish authorities detained another vessel dry docked at Puerto Sherry, the “Gemini III”, which served as a tender to the M/V “Louisa” and whose place of registration was uncertain.
On 23 November 2010 Saint Vincent and the Grenadines filed with the Tribunal an Application instituting proceedings against Spain. On the same day, Saint Vincent and the Grenadines submitted a Request for the prescription of provisional measures under Article 290 (1) LOSC, in which the Tribunal was requested, inter alia, to order Spain to release the M/V “Louisa” and return the property seized. In its Order of 23 December 2010, the Tribunal found that the circumstances did not warrant the prescription of provisional measures, but it held that it had prima facie jurisdiction over the dispute.
The Judgment of 28 May 2013
While both states are contracting parties to the LOSC and therefore bound by Part XV LOSC on the settlement of disputes by binding means, they disagreed as to whether the Tribunal had jurisdiction to entertain the case. The Tribunal was therefore called upon to rule on a number of issues.
In the first place, the Tribunal had to interpret the unilateral declaration made by Saint Vincent and the Grenadines in accordance with Article 287 LOSC. Taking into account the intention of Saint Vincent and the Grenadines, the Tribunal found that the declaration covered all claims connected with the arrest or detention of its vessels. However, the Tribunal held that it lacked jurisdiction in respect of the “Gemini III”. Although it served as a tender to the M/V “Louisa” for a particular period of time, it did not fly the Applicant’s flag and continued to work independently from the M/V “Louisa”. Therefore, it had its own identity and could not be subject to the scope of the declaration.
Furthermore, Saint Vincent and the Grenadines had argued that the Tribunal’s decision on prima facie jurisdiction in its Order of 23 December 2010 offered “ample support” in favour of the jurisdiction of the Tribunal to deal with the merits of the case. The Tribunal held that the question of jurisdiction to deal with the merits of the case could be decided only after consideration of the written and oral proceedings and not on the basis of the decision it took on prima facie jurisdiction in connection with the Request for the prescription of provisional measures.
The main part of the judgment addressed the existence of a dispute concerning the interpretation or application of the LOSC. The Tribunal noted that the case before it had two aspects. The first aspect related to the detention of the vessel and the persons connected therewith, as presented by the Applicant in its written submissions on the basis of Articles 73 (Enforcement of laws and regulations of the coastal State), 87 (Freedom of the high seas), 226 (Investigation of foreign vessels), 227 (Non-discrimination with respect to foreign vessels) and 245 (Marine scientific research in the territorial sea) LOSC. Article 303 LOSC (Archaeological and Historical Objects Found at Sea) initially invoked by the applicant, was later dismissed as a typographical error. The second aspect of the case related to the treatment of the persons taken into custody by the Spanish authorities and the alleged abuse of their rights under Article 300 LOSC (Good faith and abuse of rights).
The Tribunal found that Articles 73, 226 and 227 LOSC could not serve as a basis for the claims submitted by the Applicant. The vessel was detained neither for violations of Spanish laws and regulations concerning living resources in the exclusive economic zone, nor for violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment. Rather, it was detained in the context of criminal proceedings relating to the plunder of underwater cultural heritage and possession of weapons of war in Spanish territory. For the same reason, the Tribunal reached the same conclusion concerning Article 245, dealing with marine scientific research.
The Applicant had also contended that Spain violated Article 87 LOSC, namely the freedom of navigation of the M/V “Louisa”, because the vessel was denied access to the high seas. The Tribunal pointed out that Article 87 LOSC could not be interpreted in such a way as to grant the M/V “Louisa” a right to leave the port and gain access to the high seas.
Moreover, Saint Vincent and the Grenadines claimed that the boarding of the M/V “Louisa” without the prior permission of its captain or of the Consul of Saint Vincent and the Grenadines violated general international law and Article 561 of the Code of Criminal Procedure of Spain. The Tribunal stressed that there is no provision in the LOSC requiring a port State to notify the flag State or to obtain the authorisation of the flag State or of the master of a foreign vessel operated for commercial purposes before boarding and searching such a vessel docked at its port. Further, it highlighted that it was not incumbent upon it to determine whether Spain violated Article 561 of its Code of Criminal Procedure by boarding the M/V “Louisa” without authorisation.
Finally, referring to Article 300 LOSC concerning the alleged abuse of rights of the persons detained by the Spanish authorities, the Tribunal noted that this argument was introduced for the first time by the Applicant during the oral proceedings. The Tribunal held that “it is a legal requirement that any new claim to be admitted must arise directly out of the application or be implicit in it” and that “the dispute brought before the Tribunal by an application cannot be transformed into another dispute which is different in character”. Therefore, Article 300 LOSC could not serve as a legal basis for the Applicant’s claim.
While the Tribunal decided that there was no dispute involving the LOSC, it provided some useful comments regarding the interpretation of Articles 87 and 300 LOSC. It clarified that the freedom of navigation enshrined in Article 87 LOSC applies only to the high seas, and partly to the exclusive economic zone through Article 58 (1) LOSC. It does not include the right of the flag state to have access to the high seas to enjoy that freedom. Moreover, the Tribunal noted that Article 300 LOSC cannot be invoked on its own in case of abuse of human rights including property rights, but only when “the rights, jurisdiction and freedoms recognised” in the LOSC are exercised in an abusive manner. However, the Tribunal took note of the issues of human rights as presented by the Applicant and highlighted that States are required to fulfil their obligations under international law, in particular human rights law, and that considerations of due process of law must be applied in all circumstances.