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New cases for the ITLOS

ITLOSOn 6th July the International Tribunal for the Law of the Sea (ITLOS) received two applications on behalf of Japan and against the Russian Federation. According to the applications, Japan requests the prompt release of two fishing vessels and the crew of one of those vessels (the Hoshinmaru and 17 crew members and the Tomimaru).

Apparently, the Hoshinmaru had been boarded on 1 June 2007 by Russian officials from a patrol boat, while the Tomimaru had been boarded already on 31 October 2006. The crew of the Tomimaru was eventually released before the end of March 2007, except for the Master who was faced with criminal charges which were on trial until 30 May 2007. Furthermore, administrative proceedings were launched against the owner of the Tomimaru. In the case of the Hoshinmaru, the crew hasn’t yet been released since the vessel and the crew was detained on 5 June 2007. According to a letter from Russian officials (dated 26 June 2007) a criminal investigation had been initiated against the Master of the Hoshinmaru. However, different from the case of the Tomimaru, no bond and/or other security had been fixed which would have allowed the Master and his crew to return to Japan.

The international law perspective on this specific issue seems to be rather obvious. According to the United Nations Convention on the Law of the Sea (UNCLOS) “arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.” (Art. 73 (2) UNCLOS). Furthermore, the UNCLOS states that: “In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.” (Art. 73 (4) UNCLOS). Although Russia (the coastal State) seems to have contacted Japan (the flag State) through the appropriate channels concerning the detention of both the Tomimaru and the Hoshinmaru, it remains highly questionable whether Russia has been in compliance with Art. 73 (2) UNCLOS concerning the Hoshinmaru and its crew. The court will no doubt have reason to examine the words “promptly released” in more detail. Since the crew of the Tomimaru (at least so far) had been detained considerably longer than the crew of the Hoshinmaru (namely from 31 October 2006 until the end of March 2007) both cases will be likely to raise this question.

In this regard one should take into consideration that the prompt release follows “upon” the posting of reasonable bond/other security. In the case of the Hoshinmaru however, Russia has so far refrained from setting a bond/other security. This does nevertheless not mean, that Russia can detain the vessel and its crew as long as it deems it necessary. Instead, according to Art. 292 (1) UNCLOS, failing an agreement within 10 days from the time of detention, the question can be submitted to the ITLOS (unless the parties otherwise agree). This is what happened here.

The fishing of Japanese vessels in the Exclusive Economic Zone (EEZ) of Russia isn’t a judicial problem in itself though. According to Art. 56 UNCLOS the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living in the EEZ. However, even other countries than the coastal State itself may be allowed to exploit the natural resources in that EEZ. For that purpose, Art. 62 (2) UNCLOS determines that: “Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements (…) give other States access to the surplus of the allowable catch (…).” Nevertheless, the coastal State has the right to “determine the allowable catch of the living resources in its exclusive economic zone” (Art. 61 (1) UNCLOS). Furthermore, the coastal State has the responsibility to ensure that the maintenance of the living resources in its EEZ is not endangered by over-exploitation (Art. 61 (2) UNCLOS). Following from the sovereign rights of the coastal State in the EEZ, the coastal State “shall have due regard to the rights and duties of other States” (Art. 56 (2) UNCLOS). Thus, if the Japanese fishing vessels did indeed catch more fish in the Russian EEZ than they were allowed to, at least the initial detention of the vessels can hardly be questioned. This might be one of the reasons for why Japan does not seem to question the detention of the ships and crews itself, but the conditions and the length of the detention.

On a political basis however, the frustration of Russian officials is quite understandable. The illegal fishing in the EEZ of another country (not only Russia) is a serious problem, not only from a judicial, political and economical perspective, but from a biological and environmental viewpoint as well. In regard to the Pacific coast of Russia, the illegal fishing by vessels flying foreign flags (not only Japanese) is worsened by the poaching by Russian locals. In sum, more than 100,000 tonnes/year of salmon is poached in Kamchatka alone, home to a quarter of all Pacific wild salmon and a unique environment where all six kinds of salmon have survived so far.

3 Comments

  1. […] Case 14 and 15 before the ITLOS 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. […]

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