|GLOSSARY OF DEFINED TERMS|
|AFE||Applicant Factual Exhibit|
|ALE||Applicant Legal Exhibit|
|APE||Applicant Photographic Exhibit|
|ARSIWA||Draft Articles on the Responsibility of States for Internationally Wrongful Acts, International Law Commission, 2001|
|AWS||Applicant Witness Statement|
|Bifurcation Request||Sao Tomé's request that the Tribunal rules on the question of jurisdiction and the admissibility of the claims as separate from the merits|
|Convention||United Nations Convention on the Law of the Sea, 1982|
|ECHR||European Court of Human Rights|
|HFO||Heavy Fuel Oil|
|ICJ||International Court of Justice|
|ILC||International Law Commission|
|IMAP||Port and Maritime Institute|
|ITLOS||International Tribunal for the Law of the Sea|
|MARPOL||International Convention for the Prevention of Pollution from Ships, 1973|
|MGO||Marine Gas Oil|
|MT||Metric ton, equal to one thousand kilograms|
|Notification||Notification of Arbitration|
|Criminal Code||Código Penal|
|PCIJ||Permanent Court of International Justice|
|Post-Hearing Submissions||Comments submitted by each Party in response to the information submitted by the other Party in response to the Tribunal's question(s) of 23 February 2016|
|Registry or PCA||Permanent Court of Arbitration|
|Radar Screen-Shot||Malta's radar screen-shot accompanying the audio-recording played during the hearing on jurisdiction, admissibility, and merits|
|Reply to Post-Hearing Submissions||Reply to comments submitted by each Party in response to the information submitted by the other Party in response to the Tribunal's question(s) of 23 February 2016|
|RFE||Respondent Factual Exhibit|
|RLE||Respondent Legal Exhibit|
|RWS||Respondent Witness Statement|
|Settlement Agreement||Settlement Agreement signed between the Government of Sao Tomé and Príncipe and DS Tankers, 23 November 2013|
|SOLAS||International Convention for the Safety of Life at Sea, 1974|
|STCW||International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978|
|VDR||Voyage Data Recorder|
|VHF||Very High Frequency|
|Written Statement||Malta's written statement attaching 16 photographs in response to the questions posed by the Tribunal on 23 February 2016|
|Anuket Emerald||M/T Anuket Emerald, a vessel chartered by Monjasa PTE Ltd|
|Coast Guard||Sao Tomé Coast Guard|
|Committee||Negotiation Committee established on 21 August 2013 between the Government of Sao Tomé, DS Tankers, and Stena Oil|
|DS Tankers||DS Tankers Limited, a Maltese company and the owner of Duzgit Integrity|
|Directorate||Customs Directorate General|
|Duzgit Integrity||M/T Duzgit Integrity, a chemical tanker registered in Malta, owned by DS Tankers, and chartered by Stena Oil|
|Energizer||M/T Energizer, a vessel owned by Monjasa|
|IMAP||Port and Maritime Institute|
|Lefkoniko||Lefkoniko, a vessel registered under the Maltese flag|
|Malta||The Republic of Malta|
|Marida Melissa||M/T Marida Melissa, a fuel oil tanker, registered in the Marshall Islands and chartered by Stena Oil|
|Monjasa||Monjasa PTE Ltd|
|Parties||The Republic of Malta and The Democratic Republic of Sao Tomé and Príncipe|
|Sao Tomé||The Democratic Republic of Sao Tomé and Príncipe|
|Stena Oil||Stena Oil, a Swedish company that charted and operated Duzgit Integrity and Marida Melissa|
H.E. Manuel Salvador dos Ramos, Minister of Foreign Affairs and Communities, Agent Avenida 12 de Julho 101 Sao Tomé Democratic Republic of Sao Tomé and Príncipe
H.E. Américo Afonso Lima Viegas, Chargé d'Affaires a.i., Co-Agent Embassy of the Democratic Republic of Sao Tomé and Príncipe in Brussels Avenue Tervurenlaan 175 Brussels B-1150, Belgium
Ms. Juliette Luycks, Co-Agent and Counsel
Mr. Ruud Niesink, Co-Agent and Counsel Clifford Chance LLP Droogbak 1a 1013 GE Amsterdam, The Netherlands
Mr. Guilherme Posser da Costa, Government Legal Counsel Posser da Costa & Sociedade de Advogados, RL Av. Kwame N'Krumah
Democratic Republic of Sao Tomé and Príncipe
CB: Coast Guard Boat Officer DI: Duzgit Integrity Master
CB: Good morning sir, I want to talk with, I need you speak, what you make the here over?
DI: I commence drifting, drifting about 15 miles north of your island and we will meet with M/T Marida Melissa for some equipment transfer, hose and fender. We will meet here if possible. If you not give permission we will proceed to offshore.
CB: Yes OK. We talk with you. My English is not very good. You have any guys in your ship speak Spanish, Spanish or French is good over.
DI: Negative, negative. We can speak just Turkish, English and Russian. Do you know these languages?
CB: OK, you, can you tell me you have, you have [authorisation/representation]in Sao Tome or your agency in Sao Tome.
DI: We will not port contact; we will not port contact of Sao Tome. We will make just Ship-To-Ship transfer, Ship-To-Ship transfer. And I will proceed offshore again. I will not visit your port. I will not visit your port.
CB: OK, thank you for us. I congratulate your [collaboration/cooperation]. Good morning sir.
DI: Thank you very much, thank you very much. If any problem STS operation on here we can proceed offshore. If you give permission I want to make operation here. Here sea condition very well for Ship-To-Ship transfer.
CB: OK thank you, good morning, good job.
DI: Thank you very much, thank you very much for your good cooperation. You are welcome and your information and navy boat is very well. We are thinking safety in here. Thank you.55
I: Duzgit Integrity M: Marida Melissa
I: Navy boat proceeding to you and I take permission for sts operation for here. I think the navy boat, coast guard asking staying at drifting like that.
M: Ok well noted. We will do same cooperation with navy boat, that information.63
(i) Formal apologies would be presented to the Government of Sao Tomé by Stena Oil, which had publicly and falsely portrayed Sao Tomé and Principe as a Pirate State;
(ii) No judicial proceedings would be brought against the State of Sao Tomé, its organs or any public entity and any proceedings already instituted would be terminated.169
1. The State releases, on this date, and as it is, the Vessel Duzgit Integrity with registration no. IMO9380415, to its Owner who had possession of since March 2013 in the Ana Chaves Bay, territorial sea of Sao Tomé and Príncipe.
2. The conditions and stipulated by the State to the aforementioned release is as follows:
(i) the Owner shall pay forthwith a fine of EUR 28,875 to IMAP... which will receive these amounts on behalf of the State […]
(ii) The Owner shall pay the cargo inside the Vessel that was used by the authorities for exclusive purpose of the maintenance of the integrity of the stay in the Ana Chaves Bay, in the lump sum of USD 625, 000; […]
1. The Owner gives up and waives, as applicable, any judicial actions already filed or to be filed, in any tribunal, against the State, its administrative bodies, the representatives of the State, public entities or similar, in Sao Tomé and Príncipe or in another country, as well as any additional complaints filed with private or international entities.
2. The above mentioned waiver of rights by the Owner encompasses any request for indemnification, compensation and/or similar, in whichever manner, deriving from any fact related to the Vessel Duzgit Integrity whilst she was kept in the territorial sea of Sao Tomé and Príncipe, in relation to which there is nothing else to be claimed in whichever manner.
1. [The Owner] has not transferred, in any manner, including but not limited, to the State of Malta, any claim and/or rights the State deriving from the facts or consequences related to the stay of the Vessel in the national waters of Sao Tomé and Príncipe.223
1. Pursuant to the Arbitral Tribunal's Procedural Order No. 5 not to deal with the quantification of damages compensation at the present hearing, Malta reserves the right to present further submissions concerning compensation at a later stage, in addition to those already filed.
2. [To render] a declaratory judgement confirming the wrongfulness of [Sao Tomé and Príncipe's] conduct, a formal apology, and compensation for moral and financial losses incurred as a result of [Sao Tomé and Príncipe's] action against all interest of the Duzgit Integrity, including shipowner, charterers and crew.
3. To reject and dismiss in their entirety Sao Tomé and Príncipe's preliminary objections to the jurisdiction of the Arbitral Tribunal and the admissibility of Malta's claims in this dispute.
4. To declare, adjudge and hold that the Arbitral Tribunal has jurisdiction to hear and determine these disputes, and that Malta's claims are well founded and fully admissible.
5. To declare and adjudge and order that the Sao Tomé and Príncipe authorities did give authorisation for the operation declared by the Duzgit Integrity during the first visit by the Coast Guard, and that therefore the entirety of the measures taken by Sao Tomé on and after 15th March 2013 were unjustified.
6. [To declare] [t]hat Sao Tomé and Príncipe failed to properly inform that without written authorisation by the competent authorities of Sao Tomé and Príncipe, [the Duzgit Integrity] had to leave the territorial waters or archipelagic waters to carry out any STS operation or any other transfer of equipment with the Marshall Islands ship M/T Marida Melissa.
7. [To declare] [t]hat Sao Tomé and Príncipe, in applying national legislation related to criminal and customs law and other administrative law -- in particular Decreto No. 4/2010 -- to the Duzgit Integrity, flying the flag of the Republic of Malta, breached its obligations to the Republic of Malta first on its own right to protect the ship as provided by Articles 91 and 94, and under customary international law.
8. Without prejudice to the above, to declare, adjudge and order, whether in whole or in part, that Sao Tomé and Príncipe violated its obligations pertaining to the exercise of its maritime sovereignty in terms of any or all of Articles 2(3), 49(3), and 25(1), and did so abusively and in bad faith, and in connected violation of Article 300 of the Convention and in violation of general international law in respect of Malta, the Maltese vessel Duzgit Integrity, her master, her crew, and all interests associated thereto.
9. Without prejudice to the above, to declare, adjudge and order that Sao Tomé and Príncipe violated, and did so abusively and in bad faith, and in connected violation of Article 300 of the Convention, generally applicable rules of international law related to fundamental human rights and humanitarian concerns of the master and crew of the Duzgit Integrity and her owners and charterers, particularly, without limitation, for not affording the rights to due process and for not respecting the principles of reasonableness, proportionality, non-differentiation and nonarbitrariness.
10. Without prejudice to the above, to declare, adjudge and order that Sao Tomé and Príncipe violated Articles 192, 194 and 225 of the Convention, and other generally applicable rules and principles of the international law directly related to the Law of the Sea, and did so abusively and in bad faith, and therefore also in breach of Article 300 of the Convention.
11. With respect to reparation  the Republic of Malta respectfully requests the Arbitral Tribunal to award:
a. [F]irst, in full satisfaction, a declaratory judgment on the wrongfulness of the conduct of Sao Tomé and Príncipe in respect to the internationally wrongful acts indicated in Malta's Memorial and Reply;
b. [S]econd, a formal apology from Sao Tomé and Príncipe for those wrongful misconduct acts;
c. [T]hird, a compensation for material and non-material damages suffered by the Republic of Malta as a result of the law enforcement acts against all the interests of the Duzgit Integrity, including the shipowner, charterer and crews, as requested in this or in final submissions that the parties may yet be required to make if the quantification takes place.
12. With respect to the quantification of those damages, the Republic of Malta reserves the right to present further submissions at a later stage, pursuant  to the Arbitral Tribunal's procedural order.
13. Finally, [to order] Sao Tomé and Príncipe  to bear all costs and expenses incurred by the Applicant in this case, including, without limitation, the cost incurred in this case before the Arbitral Tribunal, legal costs, et cetera, with interest thereon.232
(i) First, to adjudge and declare that it is without jurisdiction to hear the present case.
(ii) Second, in the alternative, to adjudge and declare that the Republic of Malta's claims are inadmissible;
(iii) Third, in the alternative, to reject all claims made by the Republic of Malta, including those introduced during the oral hearings.
(iv) Fourth, to determine that the costs, disbursements and legal fees incurred by the Democratic Republic of Sao Tomé and Príncipe in these proceedings shall be fully borne by the Republic of Malta and that the Republic of Malta shall reimburse the Democratic Republic of Sao Tomé and Príncipe for its share of the expenses of the Tribunal, including the remuneration of its members.233
Application of procedures under this section
Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.
Choice of Procedure
3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.
1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.
2. A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.
3. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea established in accordance with Annex VI, and any other chamber or arbitral tribunal referred to in Part XI, section 5, shall have jurisdiction in any matter which is submitted to it in accordance therewith.
4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.
There is no provision of the Convention which is immune from interpretation by the competent judicial body. Therefore, when the occasion arises, the Tribunal is competent to interpret every word and expression in the Convention. Any other view will be contrary to the rule of law.255
Exhaustion of local remedies
Any dispute between States Parties concerning the interpretation or application of this Convention may be submitted to the procedures provided for in this section only after local remedies have been exhausted where this is required by international law.
Local remedies shall be exhausted where an international claim, or request for a declaratory judgment related to the claim, is brought preponderantly on the basis of an injury to a national or other person referred to in draft article 8.289
When the claim contains elements of both injury to a State and injury to an individual, for the purpose of deciding the applicability of the exhaustion of local remedies rule, the Tribunal has to determine which element is preponderant290
... gives up and waives, as applicable, any judicial actions already filed or to be filed, in any tribunal, against the State, its administrative bodies, the representatives of the State, public entities or similar, in Sao Tomé and Principe or in another country, as well as any additional complaints filed with private or international entities.292
adopt the view that if the rights of the national have been adequately safeguarded because it voluntarily settled the dispute and - in this case - was returned its vessel, there is no longer place for the national's State to pursue a claim for damages allegedly resulting from that same dispute....314
Obligation to exchange views
1. 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.
2. The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement.
Article 283... was intended to ensure that a State would not be taken entirely by surprise by the initiation of compulsory proceedings. It should be applied... without an undue formalism as to the manner and precision with which views were exchanged and understood. In the Tribunal's view, Article 283 requires that a dispute have arisen with sufficient clarity that the Parties were aware of the issues in respect of which they disagreed.362
The Tribunal understands this provision to require that the Parties exchange views regarding the means by which a dispute that has arisen between them may be settled.... Article 283(1) does not require the Parties to engage in negotiations regarding the subject matter of the dispute.363
The government of Sao Tomé is hereby put on notice that Malta shall imminently proceed to refer the dispute to arbitration pursuant to Article 286 UNCLOS under the applicable procedure set out in Annex VII UNCLOS. Both States are parties to UNCLOS and neither State has made any choice of procedure pursuant to Article 287 UNCLOS.369
Article 293 is not, however, a means to obtain a determination that some treaty other than the Convention has been violated, unless that treaty is otherwise a source of jurisdiction, or unless that treaty directly applies pursuant to the Convention.381
Good faith and abuse of rights
States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.
... it is apparent from the language of article 300 of the Convention that article 300 cannot be invoked on its own. It becomes relevant only when "the rights, jurisdiction and freedoms recognised" in the Convention are exercised in an abusive manner.397
... it is not sufficient for an applicant to make a general statement that a respondent by undertaking certain actions did not act in good faith and acted in a manner which constitutes an abuse of rights without invoking particular provisions of the Convention that were violated in this respect.398
Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil
1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.
3. This sovereignty is exercised subject to this Part.
(i) The Master did not disclose his intentions in full; he merely stated his intention to carry out an equipment transfer of hoses and fenders;
(ii) The Master failed to declare key information about the intended transfer; the most important part of the operation-the transhipment of some 1,555 MT of oil—is not mentioned at all during the entire conversation;
(iii) The level of English of the Coast Guard officer was poor, and this was made clear at the beginning of the conversation.425