Nigeria Wins Defence Of Rights In Dispute Against Switzerland Over Seized Vessel

***As ITLOS Conditioned Release Of Vessel, Defendants Upon Posting $14 Million

By CLEMENT NWOJI, Abuja

The Federal Republic of Nigeria (FGN) has won defence of its rights at the International Tribunal for the Law of the Sea (ITLOS) in disputed case against Switzerland.

The case concerns Nigeria’s arrest and detention of a Swiss-flagged Oil Tanker, its crew, and cargo, for having violated Nigeria’s laws by engaging in ship-to-ship transfers of fuel oil for use in hydrocarbon production activities in Nigerian waters without the required permits and authorizations.

The Solicitor General of the Federation and Permanent Secretary, Ministry of Justice, Dayo Akpata, made this known to the public on Tuesday during a briefing in Abuja.

The ITLOS had in its order conditioned the release of the vessel and the criminal defendants, who are Ukrainian’s nationals, upon Switzerland’s posting of a bond or other financial security in the amount of US$14 million and on Switzerland’s giving unequivocal assurances, in the form of an undertaking binding under international law, that it guarantees their return to Nigeria, should Nigeria prevail in the arbitral proceedings.

He noted that the International Tribunal for the Law of the Sea (ITLOS) delivered an important ruling in favour of the Federal Republic of Nigeria in an Order on Provisional Measures, announced on 6th July 2019, in The M/T “San Padre Pio” Case (Switzerland v. Nigeria).

It would be recalled that on January 23rd 2018, the Nigerian Navy arrested a Swiss-Flagged Vessel – the M/T San Padre Pio whilst undertaking a Ship to Ship transfer of fuel oil right inside a platform within the Exclusive Economic Zone of Nigeria, without the pre-requisite permits or authorization and at odd hours of the night, contrary to Navy Regulations.

The Vessel, Crew Members and Cargo were subsequently handed over to the Economic and Financial Crimes Commission (EFCC) for Prosecution.

The EFCC is currently prosecuting the case at the Federal High Court, Port-Harcourt just as the Captain and three other crew members were subsequently released on bail.

However, in May 2019, Switzerland challenged Nigeria’s enforcement actions by instituting arbitral proceedings under Annex VII of the United Nations Convention for the Law of the Sea (UNCLOS).

Switzerland also requested that ITLOS order the suspension of Nigeria’s criminal prosecutions of the vessel’s master and officers, not to institute new proceedings and that the Cargo, Crew and the vessel be released.

But in its 6 July 2019 Order, the International Tribunal for the Law of the Sea (ITLOS) rejected Switzerland’s request that the prosecutions be suspended.

The Tribunal also conditioned the release of the vessel and the criminal defendants, who are Ukrainian’s nationals, upon Switzerland’s posting of a bond or other financial security in the amount of US$14 million and on Switzerland’s giving unequivocal assurances, in the form of an undertaking binding under international law, that it guarantees their return to Nigeria, should Nigeria prevail in the arbitral proceedings.

In his reaction to the ITLOS order, Nigeria’s Solicitor General of the Federation and Permanent Secretary, Federal Ministry of Justice- Dayo Apata, hailed the Tribunal’s decision as “a vindication of Nigeria’s right to proceed with prosecuting these serious violations of Nigerian law, which is a key part of its efforts to combat maritime crimes in the Gulf of Guinea.”

With the conclusion of the provisional measures phase before ITLOS, the parties will now proceed to adjudicate the underlying dispute at the Annex Seven (7) Arbitral Tribunal.