The M/V "SAIGA" Case (Saint Vincent and the Grenadines v. Guinea), Case No. 2, Merits, Judgment, Separate Opinion of President Mensah (July 1, 1999)
1. I have voted in favour of operative paragraph 3 of the Judgment in spite of the serious doubts I have about the registration status of M/V Saiga at the time of the incident which gave rise to the dispute. I have had the opportunity to read the Dissenting Opinions of Judges Warioba and Ndiaye on the issue of the registration and nationality of the Saiga, and I agree with the main thrust of their Opinions that, on a correct interpretation of the Merchant Shipping Act of Saint Vincent and the Grenadines, read with the relevant provisions of the Convention, the Saiga was not a ship entitled to fly the flag of Saint Vincent and the Grenadines on 28 October 1997 because, on that day, its provisional registration had expired and no other registration had been granted to it under the laws of Saint Vincent and the Grenadines. I have also seen the Separate Opinion of Vice-President Wolfrum on this point, and I agree fully with his reasoning and conclusions.
2. The facts concerning the registration of the Saiga in the period between 12 March 1997 and 28 November 1997 are not in dispute. Both parties accept that there was no currently valid document of registration for the ship from 12 September 1997, when the Provisional Certificate of Registration was stated to expire, to 28 November 1997, when the Permanent Certificate of Registration was issued to the ship. (The Provisional Certificate of Registration that was issued to the Saiga on 14 April 1997 states: “This Certificate expires on 12 September, 1997”). And it is not disputed that the entry in the Ships Register of Saint Vincent and the Grenadines recorded that the provisional registration of the Saiga was valid only up to 12 September 1997 (“Valid thru: 12/09/97”). The disagreement between the parties concerns the conclusion that may be drawn from these facts. Guinea contends that the only conclusion to be drawn from the absence of both a certificate of registration in force and a valid entry in the Ships Register is that the ship was not registered in Saint Vincent and the Grenadines. Consequently, it concludes that the ship did not have the nationality of Saint Vincent and the Grenadines during the period. Saint Vincent and the Grenadines, on the other hand, maintains that provisional registration continued in force during the period, notwithstanding the fact that the Provisional Certificate of Registration had expired and the entry in the Ships Register stated that registration had ceased to be valid with effect from 12 September 1997.