On 23 January 2018, the Nigerian navy intercepted and arrested the M/T San Padre Pio, a motor tanker flying the flag of Switzerland, while it was engaged in one of several ship-to-ship transfers of gasoil. The gasoil was intended to supply the Odudu Terminal, an oil installation located within Nigeria’s exclusive economic zone and operated by the company Total. According to Switzerland, at the time of the arrest, the vessel was approximately 32 nautical miles from the closest point of Nigeria’s coast and within the exclusive economic zone of Nigeria. Nigeria argued that the vessel and crew did not have the required permits. Switzerland disputed this.

Switzerland requested an arbitral tribunal to be constituted under Annex VII to the United Nations Convention on the Law of the Sea 1982 (UNCLOS) to adjudge and declare that Nigeria breached Switzerland’s rights under UNCLOS by intercepting, arresting and detaining the San Padre Pio, its crew and cargo without the consent of Switzerland and initiating criminal proceedings against the crew. Specifically, Switzerland alleged breaches of freedom of navigation (art 58 read in conjunction with art 87), exclusive flag State jurisdiction (art 58 read in conjunction with art 92) as well as breaches under the International Covenant on Civil and Political Rights, the Maritime Labour Convention and customary international law.

Switzerland requested the Tribunal to prescribe provisional measures requiring Nigeria to release immediately the vessel, its cargo and crew.

Held: (1) By 17 votes to 4, the Tribunal prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measures under art 290.5 of UNCLOS:

(a) Switzerland shall post a bond or other financial security, in the amount of USD 14,000,000, with Nigeria in the form of a bank guarantee;
(b) Switzerland shall undertake to ensure that the master and the three officers are available and present at the criminal proceedings in Nigeria, if the Annex VII arbitral tribunal finds that the arrest and detention of the San Padre Pio, its cargo and its crew and the exercise of jurisdiction by Nigeria do not constitute a violation of UNCLOS. Switzerland and Nigeria shall co-operate in good faith in the implementation of such undertaking;
(c) Upon the posting of this bond or other financial security and the issuance of this undertaking, Nigeria shall immediately release the San Padre Pio, its cargo and the master and the three officers and shall ensure that they are all allowed to leave the territory and maritime areas under the jurisdiction of Nigeria.

(2) By 19 votes to 2, the Tribunal decides that Switzerland and Nigeria shall refrain from taking any action which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal.

(3) By 19 votes to 2, the Tribunal decides that Switzerland and Nigeria shall each submit an initial report not later than 22 July 2019 to the Tribunal, and authorises the President to request further reports and information as he may consider appropriate after that report.

The Tribunal may prescribe provisional measures under art 290.5 of UNCLOS only if the provisions invoked by the applicant prima facie appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded, but need not definitively satisfy itself that the Annex VII arbitral tribunal has jurisdiction over the dispute submitted to it. Switzerland invokes arts 286 and 287 of UNCLOS as the basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded. The question the Tribunal has to address is whether the dispute submitted to the Annex VII arbitral tribunal is a 'dispute concerning the interpretation or application of this Convention' referred to in those articles. Although Nigeria did not respond to Switzerland’s position that the interception, arrest and detention of the San Padre Pio constituted a violation of the provisions of UNCLOS, its view on this question may be inferred from its conduct. The Tribunal is thus of the view that a dispute appears to have existed between the parties on the date of the institution of arbitral proceedings. The Tribunal is further of the view that at least some of the provisions invoked by Switzerland appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal might be founded. The Tribunal accordingly considers that a dispute concerning the interpretation or application of the Convention prima facie appears to have existed on the date of the institution of the arbitral proceedings.

Article 283.1 of UNCLOS reads: '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.' Switzerland made repeated attempts to exchange views with Nigeria regarding the settlement of the dispute concerning the arrest and detention of the vessel, its crew and cargo. Switzerland received no response from the Nigerian authorities to its various communications relating to the alleged breach of UNCLOS and other rules of international law and Nigeria therefore did not engage in an exchange of views with Switzerland. Under these circumstances, the Tribunal considers that Switzerland could reasonably conclude that the possibility of reaching agreement was exhausted. Accordingly, the Tribunal is of the view that these considerations are sufficient at this stage to find that the requirements of art 283 of UNCLOS were satisfied before Switzerland instituted arbitral proceedings.

At this stage of the proceedings, the Tribunal is not called upon to determine definitively whether the rights claimed by Switzerland exist, but need only decide whether such rights are plausible. In the Tribunal’s view, taking into account the legal arguments made by the parties and evidence available before it, it appears that the rights claimed by Switzerland in the present case on the basis of art 58.1, art 58.2 and art 92 of the Convention at least are plausible.

There is a real and imminent risk of irreparable prejudice to the rights of Switzerland pending the constitution and functioning of the Annex VII arbitral tribunal. The Tribunal accordingly finds that the urgency of the situation requires the prescription of provisional measures under art 290.5 of UNCLOS.