On 6 August 2007 the International Tribunal for the Law of the Sea (ITLOS) presented its judgments in the “Tomimaru” Case (No. 15) and “Hoshinmaru” Case (No. 14) – see also the previous entry of 31 July 2007: New Cases for the ITLOS.
The Cases had been filed with the ITLOS on 6 July 2007 by Japan against the Russian Federation and concerned the release of a fishing vessel and its crew (in the Hoshinmaru Case) as well as the release of a fishing vessel (in the Tomimaru Case). The procedure before the Court developed – in round terms – as follows:
After receiving the applications, the ITLOS submitted these to the Respondent and notified the same of the initiation of the cases.
Subsequently, the President of the ITLOS (Judge Rüdiger Wolfrum) fixed dates for the opening of the hearing with respect to the applications in the two cases.
Consultations were held between the President of the ITLOS and the representatives of the parties.
The UN Secretary General was notified of the receipt of the applications (the ITLOS being an independent judicial body established by the United Nations Convention on the Law of the Sea).
The Respondent (i.e. Russia) submitted its Statements in Response.
The President held further consultations with the parties.
Initial deliberations were able to start, prior to the oral proceedings.
Following the final oral proceedings, the parties were given the opportunity to submit final submissions.
The findings of the ITLOS were rather expected. In the Tomimaru Case, Japan had requested the ITLOS to declare the Respondent to be in breach of Art. 73 (2) UNCLOS, which states that “arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.” Initially however, the Court had to deal with the effects of the confiscation of the Tomimaru, since the Respondent claimed (para. 59) that proceedings before the Russian national fora had been held and that the subsequent decisions by the Russian Courts had entered into force and even been executed. Therefore, so the Respondent claimed, the Tomimaru had become the property of the Russian Federation rendering the application before the ITLOS without object.
The ITLOS initially distinguished between two questions: “(i) Whether confiscation may have an impact on the nationality of a vessel; and (ii) whether confiscation renders an application for the prompt release of a vessel without object.” (see para. 69).
Although the Court determined that the confiscation of the vessel does change its ownership, “it cannot be assumed that a change in ownership automatically leads to the change or loss of its flag.” (para. 70 in fine).
By turning to the second question, the Court stated “that confiscation of a fishing vessel must not be used in such a manner as to upset the balance of the interests of the flag State and of the coastal State established in the Convention.” (para. 75). This might be interpreted as a warning signal of the Court in the direction of the Respondent (as well as the Applicant), considering the long history of similar incidents in the Exclusive Economic Zone of Russia between Russian coast guards and Japanese fishing vessels. Especially since Japan in its initial applications for the prompt release had claimed that “no charge or allegation of any violation of the Respondent’s law was made upon boarding, but the Tomimaru was ordered to sail to the port of Petropavlovsk-Kamchatskii (…).” (para. 10).
While the ITLOS determined that it was not prevented from considering an application for prompt release, although proceedings are still before the domestic courts of the detaining State, the Court did not feel it was able to proceed in the current case. This was due to the fact that the Supreme Court of Russia had by a decision brought the procedure before the domestic courts to an end. Since there was no reason to believe, that the proceedings before the Russian courts were in violation of international standards of due process, the Court subsequently decided that the application of Japan was without object.
It is interesting that the decision by the Russian Supreme Court was issued first after the oral proceedings before the ITLOS had been ended on 26 July 2007. Upon notice, the Japanese representative requested the ITLOS to at least address some fundamental issues of prompt release. In other words, the main purpose of this judgment seems to be to remind all parties involved of the existence of the legal regime on the law of the sea.
The Hoshinmaru Case was slightly different. After finding that the Court had jurisdiction – under Art. 292 UNCLOS – it went on to consider the question of admissibility. Here, the Court had to take on the question of whether the application became moot on 13 July 2007 when – although after the Japanese application had already been filed with the ITLOS – the competent Russian authorities had set a bond for the Hoshinmaru. Surely, Russia could thereby claim to have followed its obligations under Art. 73 (2) UNCLOS (“… arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.”) which could render the Japanese application in the current case without object; however, the Court – rightly – stated that although “the decisive date for determining the issues of admissibility is the date of the filing of an application” (para. 64) “a State may make an application under article 292 of the Convention not only where no bond has been set but also where it considers that the bond set by the detaining State is unreasonable” (para. 65). This was obviously the case here. After finding the application admissible, the court therefore turned to the material question of reasonable bond. Firstly, it determines “that the amount of a bond should be proportionate to the gravity of the alleged offences” (para. 88). Therefore, the bond set by the Russian authorities, 22,000,000 roubles (appr. 862,000 US dollars) was not reasonable (para. 93). On the contrary: Russia had set the bond inter alia on the basis of the maximum penalties which could be applicable to the owner and the Master of the Hoshinmaru, and furthermore calculated the bond on the basis of the confiscation of the vessel. This, in the view of the court, was not reasonable leading up to the determination that Russia had indeed been in violation of its obligations under Art. 73 (2) UNCLOS (para. 94). The court itself set the bond at a total amount of 10,000,000 roubles, which was considerably lower than what the Russian authorities had decided but also higher than what the Japanese had suggested (8,000,000 roubles; para. 91).
Overall, one might say that the cases did not present any major discussion of significant issues of public international law. However, the court does on several occasions in its reasoning underline its role as a guardian of the law of the sea and thereby of the preservation of the sea-resources. This becomes particularly clear when it states in para. 99 that “the Tribunal is of the view that the offence committed by the Master of the Hoshinmaru should not be considered as a minor offence or an offence of a purely technical nature.” Instead it highlights the importance of “[m]onitoring of catches, which requires accurate reporting” and the significance of “proper conservation and management measures” in order to ensure “that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation.”
The Tomimaru Case raises some interesting questions about the nature of the prompt release procedure and its relationship with domestic law proceedings. The Tribunal decided that the application was without object because the vessel had been confiscated according to Russian law. In other words, the vessel was no longer detained so there was no need for it to pronounce on its release. The Tribunal says at para. 76 that “a decision to confiscate eliminates the provisional character of the detention of the vessel rendering the procedure for its prompt release without object.” However, it continues, ” Such a decision should not be taken in such a way as to prevent the shipowner from having recourse to available domestic judicial remedies, or as to prevent the flag state from resorting to the prompt release procedure set forth in the Convention; nor should it be taken through proceedings inconsistent with international standards of due process of law. In particular, a confiscation decided in undue haste would jeopardize the operation of article 292 of the Convention.” The reference to international standards of due process of law is interesting. The Tribunal implies that it would be willing to order the prompt release of a vessel that had been confiscated in violation of such international standards. Yet, it does not say what these standards are or how they would be determined. Nor does it say on what basis such a determination may be made. The Tribunal appears to have taken a creative approach to its mandate under Article 292 of the Convention. Yet, this approach may be in conflict with paragraph 3 of Article 292 which provides in part, “the court or tribunal shall deal only with the question of release, without prejudice to the merits of the case before the appropriate domestic forum against the vessel, its owner or its crew.” As Judges Jesus and Nelson pointed out in their separate opinions, the confiscation of the vessel is part and parcel of the merits of the case.
Writing before the entry into force of the Convention, Shigeru Oda expressed doubts over the prompt release procedure, arguing that “the question of prompt release is inevitably linked with the content of the rules and regulations of the coastal state concerning fisheries in its EEZ and their enforcement” (Oda, “Dispute Settlement Prospects in the Law of the Sea” (1995) 44 ICLQ 863, at p. 866). In its early cases, the Tribunal was keen to stress the limited nature of its prompt release jurisdiction and the distinction between prompt release proceedings and the merits of a case. However, this latest decision appears to suggest that there was some truth in the criticism of Oda after all.