Basel professor acting as judge ad hoc to the International Tribunal for the Law of the Sea

In January 2018, Nigeria arrested the San Padre Pio, a vessel flying the Swiss flag. The ship was to supply fuel to an offshore oil production platform off the coast of Nigeria. According to the Nigerian authorities, the transport violated domestic law. Ship, crew, and cargo were seized. In Switzerland’s view, the ship was not in Nigeria’s territorial waters and therefore Nigeria had no right to detain it.

In May 2019, Switzerland initiated arbitration proceedings in this case and also submitted a request for provisional measures to the International Tribunal for the Law of the Sea (ITLOS) in Hamburg. As the ITLOS has neither a permanent judge from Switzerland nor from Nigeria, both parties were allowed to appoint a judge ad hoc for this case. Switzerland appointed Prof. Dr. Anna Petrig as judge ad hoc. The professor of international law at the University of Basel is a sought-after worldwide expert on the subject of law of the sea.

A historic case

A few days ago, ITLOS decided on the provisional measures. It ruled largely in favor of Switzerland’s request and ordered Nigeria to release the San Padre Pio, its crew and cargo. In order to protect Nigeria’s rights, the tribunal has ordered Switzerland to post a bond or other financial security of USD 14 million. The ensuing arbitral tribunal will decide whether a payment must be made to Nigeria from this security.

"This is a historic case," says Professor Petrig. "Not only is this the very first time that a land-locked country has appeared before the International Tribunal for the Law of the Sea. The decision is also of a fundamental nature, as offshore uses in the so-called 'Exclusive Economic Zone' rapidly increase. For example, numerous offshore windfarms are being built as part of the energy transformation. With all these new uses of the sea, the question arises as to how far the respective powers of the coastal state and the flag state extend."

Controversy around the “Exclusive Economic Zone"

The Exclusive Economic Zone is a maritime zone situated between territorial waters and the high seas in which the coastal state enjoys certain sovereign rights but not full sovereignty. Among other things, coastal states are competent to regulate, monitor and enforce violations in the context of the exploitation and management of living and non-living resources. These include primarily fishing and the exploitation of mineral resources, such as oil.

Whether the supply of fuel for the operation of offshore platforms also falls under the regulatory power of the coastal state is controversial. Switzerland is of the opinion that the process is subject to freedom of navigation and does therefore not fall within the competence of the coastal state of Nigeria. The arbitral tribunal yet to be constituted, will decide on this question in the coming months.