ITLOS: The “Zheng He” Case, Provisional Measures Request

As previously suggested, on 7 June 2024 the International Tribunal for the Law of the Sea (ITLOS) received a request from Luxembourg for the prescription of provisional measures in The “Zheng He” Case (Luxembourg v. Mexico) (UNCLOS, Article 290(1)). According to the Request for Provisional Measures of Luxembourg:

79. In accordance with article 17, paragraph 2, of the Statute of the Tribunal, Luxembourg appoints Professor Marcelo Gustavo Kohen to sit as a member of the Tribunal.
80. For the reasons set out above, Luxembourg respectfully requests the Tribunal to prescribe the following provisional measures:
1. In order to safeguard the basic rights and freedoms of the crew:

• Order Mexico to continue to ensure the freedom of circulation of the crew members off board the vessel and their access to health-care establishments, places of worship and recreational facilities;
• Order Mexico to continue to ensure that there will be no impediments to the renewal of the crew and the necessary rotations;
• Order Mexico to continue to ensure that the crew will not be compelled by law enforcement agencies to disembark from the vessel nor be prevented from reembarking the vessel;
  
  2. In order to safeguard the rights of Luxembourg as the flag State:
• Order Mexico to allow Luxembourg to effectively exercise its jurisdiction and control in administrative, technical and social matters over the vessel, and to enable any measures necessary for the preventive and corrective maintenance of the Zheng He in order to ensure its compliance with the national, European and international standards applicable to vessels flying the flag of Luxembourg;
• Prohibit Mexico from directly or indirectly exploiting the vessel Zheng He;
• Prohibit Mexico from taking any measures to create or transfer real rights to the vessel and from changing the flag of the vessel Zheng He;
  
  3. In order to avoid aggravating or extending the dispute:
• Prohibit Mexico from collecting the customs fine of 1,616,462,343.52 Mexican pesos imposed on European Dredging Company SA;
• Prohibit Mexico from immobilizing, confiscating and expropriating, in any proceeding whatsoever, vessels related to the vessel Zheng He flying the flag of Luxembourg, whether they be the property of European Dredging Company SA, its parent company SOFIDRA or any other subsidiary of SOFIDRA;
• Prohibit Mexico from initiating new national proceedings or new actions against the Zheng He, European Dredging Company SA, its parent company SOFIDRA or any other subsidiary of SOFIDRA;
  
  4. In order to ensure equality of the parties in the proceedings before the Tribunal:
• Authorize the agents of Luxembourg to conduct on the territory of Mexico, without restriction, any investigations in connection with the present proceedings, in particular to ascertain the condition of the vessel Zheng He and to collect any relevant evidence;
• Transmit to Luxembourg, at its request and after verification by the Tribunal, the information and documents to which Luxembourg was unable to gain access relating to the non-contentious and contentious proceedings under Mexican law concerning the Zheng He, including forthwith:
  • The identification of the different quays in the Port of Tampico, with their official and/or common names, and the GPS coordinates of the endpoints of each quay;
  • The regulatory texts of Mexico in force on 21 October 2023 that were officially published relating to the tax and customs regime of each quay in the Port of Tampico.

Request for Provisional Measures of Luxembourg, paras 79-80 (80 as translated in ITLOS/Press 352)

One may note that the Request for Provisional Measures by Luxembourg refers to a request being made, “pending settlement of the merits of the dispute, whether resulting from a judgment of the Tribunal or an amicable agreement reached during the proceedings” (para 8).