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Panel 5: Se*lement of Disputes under UNCLOS

The evolu)on of ITLOS jurisprudence on prompt release of vessels

HAMAMOTO Shotaro Professor, Graduate Schoolf of Law, Kyoto University

UNCLOS at 30 22-‐23 November 2012 @ The Law Society of Northern Ireland, Belfast.

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Tomimaru No 53

The Captain of Hoshinmaru No 88, aJer release

Ar)cle 220: Enforcement by coastal States

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Why prompt release?

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Introduc)on of the concept of EEZ: -‐ exercise of sovereign rights and jurisdic)on of the coastal

State in 200-‐mile zones

•  deten)on of a tanker -‐> increases in price of petroleum products

•  deten)on of a fisherman -‐> great loss, because fishing season may be short

Need to balance interests of coastal States and flag States

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“Two safeguards for flag States”

1.  specific provisions requiring the prompt release of vessels arrested in the EEZ against the pos)ng of bonds, in order to guard against over-‐long periods of deten)on pending trial -‐ Arts 73(2), 220(7), 226(1)(b)

2.  a procedure whereby an interna)onal court or tribunal could supervise the applica)on of those provisions and could, if appropriate, itself order the release of a vessel and determine the terms of a reasonable bond -‐ Art 292

(D.H. Anderson, “Prompt Release of Vessels and Crews”, Max Planck Encyclopedia of Public InternaPonal Law, online version, 2008.)

Two problems

1. Unrealis)c? -‐ How is it possible to calculate the amount of bond “without prejudice” to the merits?

2. Counter-‐produc)ve? -‐ leading to prompt confisca)on?

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B.H. Oxman & V.P. Bantz, “Un droit de confisquer?” in La mer et son droit: mélanges offerts à Laurent Lucchini et Jean-‐Pierre Quéneudec, Paris, Pedone, 2003.

1. Unrealis)c?: Inevitable prejudice

H. Türk, “The Work of the Interna)onal Tribunal for the Law of the Sea”, Ocean Yearbook, vol 26 (2012), p. 181, p. 197. 9

How to determine the amount of “a reasonable bond” (Art 292(1))?

It can fairly be said that ITLOS has developed a coherent jurisprudence in respect of prompt release cases, par)cularly as regards the relevant factors for determining the reasonableness of bonds or other financial security.

•  the gravity of the alleged offences •  the penalty imposed or imposable under the laws of the detaining State

•  the value of the detained vessel •  the value of the cargo seized •  the amount of the bond imposed by the detaining State

Hoshinmaru (Russia v. Japan, 2007), para. 89.

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For the Tribunal, ar)cle 292(3) was never intended to prevent it from making determina)ons bearing on the merits when these are necessary for the assessment of a reasonable bond; this is quite different from the Tribunal deciding the merits itself.

-‐ V.P. Coglia)-‐Bantz, Case note, ICLQ vol 58 (2009), p. 241, pp. 250-‐251.

•  Not a case of fishing without a licence. •  But not a minor offence. •  Japan expresses the wish to con)nue to endeavour ensuring that the crews of fishing vessels flying its flag respect local laws and regula)ons.

•  The existence of a broadly sa)sfactory coopera)ve framework on the management and conserva)on of fish stocks in the Russian EEZ in the Pacific.

(Hoshinmaru, Judgment, paras. 98-‐99)

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Russia: The offence is of a nature of sufficient gravity to jus)fy the confisca)on of the vessel and the imposi)on of the maximum fine.

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2. Counter-‐produc)ve?: confisca)on by the costal State

Does the “without prejudice” clause encourage the coastal State to promptly confiscate the vessel?

•  Grand Prince (Belize v France, 2001) -‐ the vessel in ques)on has already been confiscated by the local court. (-‐ the Tribunal decided that it did not have jurisdic)on for another reason.)

“the release of a vessel which has been declared forfeit by a court as a penalty could well be considered to be capable of prejudicing (and even of prejudicing totally) the enforcement of the court's order. (Sep. Op. Anderson)

•  Juno Trader (St Vincent and the Grenadines v Guinea-‐Bissau, 2004) -‐  a decision to confiscate taken by an administra7ve body is being reviewed by the local court.

-‐> the applica)on for prompt release is admissible.

•  Tomimaru (Japan v Russia, 2007) -‐ the local court decided to confiscate the vessel aJer the oral pleadings before the

ITLOS and before the judgment. -‐> the applica)on for prompt release “no longer has any object”.

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Juno Trader, Joint Sep.Op. Mensah & Wolfrum

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Tomimaru (Japan v Russia, 2007), Judgment.

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“interna)onal standards of due process of law”

1.  How to determine the standards? 2.  Applicable in the prompt release procedure?

1. How to determine the standards?

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ICCPR, Art 14(3) “In the determina)on of any criminal charge against him, everyone shall be en)tled to the following minimum guarantees, in full equality:… (b) To have adequate 7me and facili)es for the prepara)on of his defence

and to communicate with counsel of his own choosing;…”

ECHR, Art 6(3) “Everyone charged with a criminal offence has the following minimum rights:… (b) to have adequate 7me and facili)es for the prepara)on of his defence;

…”

ACHR, Art 8(2) “every person is en)tled, with full equality, to the following minimum guarantees:… (c) adequate 7me and means for the prepara)on of his defense;…

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2. Applicable in the prompt release procedure?

Tomimaru, Declara)on of Judge Jesus

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