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

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1 UNCLOS at November The Law Society of Northern Ireland, Belfast. Panel 5: Se*lement of Disputes under UNCLOS The evolu)on of ITLOS jurisprudence on prompt release of vessels Tomimaru No 53 The Captain of Hoshinmaru No 88, ajer release HAMAMOTO Shotaro Professor, Graduate Schoolf of Law, Kyoto University

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4 Ar)cle 220: Enforcement by coastal States

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6 Why prompt release? 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

7 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.)

8 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? 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.

9 1. Unrealis)c?: Inevitable prejudice 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 H. Türk, The Work of the Interna)onal Tribunal for the Law of the Sea, Ocean Yearbook, vol 26 (2012), p. 181, p. 197.

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

11 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 )

12 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.

13 2. Counter- produc)ve?: confisca)on by the costal State 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. Does the without prejudice clause encourage the coastal State to promptly confiscate the vessel?

14 Juno Trader, Joint Sep.Op. Mensah & Wolfrum

15 Tomimaru (Japan v Russia, 2007), Judgment. interna)onal standards of due process of law 1. How to determine the standards? 2. Applicable in the prompt release procedure?

16 1. How to determine the standards? 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;

17 2. Applicable in the prompt release procedure? Tomimaru, Declara)on of Judge Jesus