## Facts

- The M/V *Saiga* was an oil tanker used for bunkering (supplying gas oil to other vessels) off the West African coast and was provisionally registered in Saint Vincent and the Grenadines.
- On 27 October 1997, the *Saiga* supplied gas oil to three fishing vessels licensed by Guinea to fish in Guinea’s exclusive economic zone (EEZ); the bunkering occurred within Guinea’s EEZ.
- Guinea alleged the bunkering violated its customs laws, including a surtax on imported petroleum products.
- On 28 October 1997, while the *Saiga* was outside Guinea’s EEZ and territorial sea (off Sierra Leone), Guinean patrol boats fired on, boarded, and arrested the vessel, injuring two persons.
- Guinea took the vessel to Conakry, detained the master, seized crew travel documents, stationed armed guards onboard, and discharged the gas oil cargo under official orders.
- Saint Vincent and the Grenadines initiated proceedings under the law of the sea dispute-settlement system; the parties later agreed to submit the merits dispute to the International Tribunal for the Law of the Sea (ITLOS).

## Issues

1. Whether the *Saiga* was validly entitled to Saint Vincent and the Grenadines nationality and whether an alleged absence of a “genuine link” could defeat the flag State’s standing.
2. Whether Guinea could enforce its customs and fiscal laws against bunkering in the EEZ or against the *Saiga* beyond the EEZ.
3. Whether the arrest could be justified as hot pursuit under Article 111 of the U.N. Convention on the Law of the Sea (UNCLOS).
4. Whether Guinea’s use of force in the boarding and arrest complied with international law standards of necessity and proportionality.
5. Whether the claims were inadmissible for failure to exhaust local remedies or because the persons harmed were not nationals of the flag State.
6. What reparations were owed for the vessel’s detention, cargo discharge, injuries, and related losses.

## Decision

- ITLOS upheld jurisdiction and rejected Guinea’s admissibility objections, including those based on local remedies and the mixed nationalities of persons onboard.
- ITLOS held the *Saiga* was validly registered in Saint Vincent and the Grenadines and that other States could not challenge the registration by invoking a lack of a “genuine link.”
- ITLOS found Guinea’s extension of its customs surtax regime to bunkering in the EEZ (and its enforcement actions beyond the EEZ) inconsistent with UNCLOS.
- ITLOS concluded the conditions for hot pursuit were not satisfied, including lawful commencement and evidentiary proof tying the pursuit to a qualifying maritime zone; the arrest occurred outside Guinea’s EEZ.
- ITLOS held Guinea used excessive force by firing on and arresting an unarmed vessel without showing necessity.
- ITLOS ordered Guinea to make full reparation, including compensation for ship damage, cargo loss, detention-related financial loss, personal injuries and suffering, and litigation-related costs and expenses.

## Legal Principles

- A ship’s valid registration and flag are generally sufficient for the flag State to exercise international protection; an alleged absence of a “genuine link” under UNCLOS Article 91 is not a basis for third States to deny the ship’s nationality or the flag State’s standing.
- Coastal State jurisdiction in the EEZ is limited to rights and jurisdiction expressly conferred by UNCLOS; general customs and fiscal enforcement against foreign vessels is not inherent to the EEZ regime.
- Hot pursuit under UNCLOS Article 111 requires lawful commencement from specified maritime zones, continuity of pursuit, and termination upon the vessel’s entry into another State’s territorial sea; failure to satisfy these conditions renders the seizure unlawful.
- In maritime law enforcement, force should be avoided where possible and, if unavoidable, must be reasonable and necessary; “considerations of humanity” constrain enforcement measures at sea.
- A flag State may seek reparation for injuries to the vessel and for harm to the crew and other persons onboard, regardless of their nationalities, when the injuries arise from internationally wrongful interference with the ship.

## Conclusion

ITLOS held that Guinea unlawfully enforced its customs regime against bunkering activity in the EEZ, failed to meet the strict requirements for hot pursuit, and used excessive force in arresting the *Saiga* outside Guinea’s maritime zones; the flag State was entitled to full reparation for losses to the vessel, cargo, and persons onboard.


The M/V Saiga (No. 2) (St. Vincent & the Grenadines v. Guinea), 38 I.L.M. 1323 (Int’l Trib. L. Sea 1999)