On 17 March 2009, the International Tribunal for the Law of the Sea adopted an amendment to the rules relating to the prompt release of vessels. The new rules change the way in which financial security may be posted to comply with the relevant provisions of the Law of the Sea Convention.
Articles 73 and 226 of the Law of the Sea Convention require a state which has detained a vessel for fishing or pollution offences to promptly release the vessel on the posting of reasonable bond or other financial security. The Tribunal has jurisdiction under Article 292 of the Convention, in the absence of an agreement otherwise, to decide on whether or not the detaining state has complied with this requirement. In fact, prompt release disputes have constituted the majority of disputes submitted to the Tribunal to date, accounting for nine of its fifteen cases.
The new rules on prompt release adopted by the Tribunal make it possible for the Tribunal to order the bond or financial security to be posted directly to the Registrar of the Tribunal, instead of to the detaining state. If this is done, the financial security will only be transmitted to the detaining state when it is demanded to satisfy the payment of a final judgment, award or decision of the courts of the detaining country. Such a demand must be accompanied by a certified copy of the judgment, award or decision. Any cash surplus that is not required will be returned.
This amendment is a noteworthy elaboration of the provisions of the Law of the Sea Convention which does not expressly foresee a role for the Tribunal in supervising the posting of the bond or financial security. The upshot of the new procedure is to guarantee the prompt return of any surplus security not required to satisfy a judgment of the national courts as the security will be held by an impartial party until the final judgment is rendered. This may give more confidence to the representative of the detained vessel to offer the security which can often amount to a significant sum. However, this new procedure for the posting of a bond will only be available where a dispute has been submitted to the Tribunal. It will be interesting to see whether the existence of this procedure may itself become a reason for making a submission to the Tribunal.