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Introduction
On April 10, 2019, the International Tribunal of the Sea (ITLOS) gave judgment in the M/V “Norstar” (Panama v. Italy) case.1 This was the first time an international tribunal had ruled directly on the principle of freedom of navigation in international waters. Specifically, ITLOS found (by fifteen votes to seven) that by arresting and detaining the Panamanian-flagged M/V “Norstar”, Italy had violated Article 87(1) of the 1982 UN Convention on the Law of the Sea (UNCLOS).2 In doing so, the Tribunal arguably relied on a quite expansive understanding of the exclusive flag state jurisdiction principle as set out in Article 92 UNCLOS—a point that was argued forcefully in a seven-judge dissenting opinion. Below, I will briefly outline the background to the case before setting out the central aspects of the judgment and considering further this point of contention surrounding the permissibility of nonflag prescriptive measures in international waters.
Background
The M/V “Norstar” was a Panamanian-flagged oil tanker that between 1994 and 1998 was involved in the supply of gasoil (“bunkering”) to various “mega yachts” in the Mediterranean Sea, in international waters immediately outside of the territorial seas of Italy, Spain, and France.3 At the time of its arrest, the vessel was owned by a Norwegian shipping company, under charter to a Maltese-owned company, though the bunkering activity occurred under the direction of a local broker, Rossmare International SAS, which was subject to a criminal investigation by Italian fiscal police. The vessel was arrested and seized in September 1998 by Spanish authorities while anchored in the bay of Palma de Mallorca—that is, within Spanish internal waters—following a request for judicial assistance from Italy. This request followed a decree of seizure by the Public Prosecutor of the Court of Savona on August 11, 1998, which came in the course of criminal proceedings against eight individuals accused of smuggling and tax fraud, including the captain of the Norstar and the owner of Rossmare International SAS. All of the accused were later acquitted, and the court ordered that the vessel be released back to its owners, but a failure to take possession eventually led to the Norstar being auctioned off by the Spanish port authorities.
Panama instituted proceedings before ITLOS in...