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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
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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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