¹ 1833 UNTS 396 (opened for signature 10 December 1982, entered into force 16 November 1994). See below n 12 for the text of the Article.

² Hoshinmaru (Japan v Russian Federation) (Prompt Release, Judgment of 6 August 2007) <www.itlos.org/case_documents/2007/document_en_295.pdf> accessed 20 April 2008 [102]. The Tribunal announced that the bond was paid by the shipowner on 15 August 2007 and that the vessel and its crew were released the day after. Press release ITLOS/Press 114 <www.itlos.org/news/press_release/2007/press_release_114_en.pdf> accessed 20 April 2008.

³ Tomimaru (Japan v Russian Federation) (Prompt Release, Judgment of 6 August 2007) <www.itlos.org/case_documents/2007/document_en_296.pdf> accessed 20 April 2008 [82].

⁴ D H Anderson, ‘Investigation, Detention and Release of Foreign Vessels under the UN Convention on the Law of the Sea of 1982 and Other International Agreements’ (1996) 11 International Journal of Marine and Coastal Law 165, 167. Generally, see Escher, Anne-Katrin, ‘Release of Vessels and Crews before the International Tribunal for the Law of the Sea’ (2004) 3 The Law and Practice of International Courts and Tribunals 205–374 and 411–507CrossRefGoogle Scholar; G Eiriksson, The International Tribunal for the Law of the Sea (The Hague Martinus Nijhoff 2000).

⁵ The issue of confiscation arose in the Grand Prince case and in the Juno Trader case, although in different terms. See below, D. Grand Prince (Belize v France) (Prompt Release, Judgment of 20 April 2001) ITLOS Reports 2001 17, 45 [93]–[95]; Juno Trader (Saint Vincent and the Grenadines v Guinea-Bissau) (Prompt Release, Judgment of 18 December 2004) ITLOS Reports 2004 17, 36 [62].

⁶ Monte Confurco (Seychelles v France) (Prompt Release, Judgment of 18 December 2000) ITLOS Reports 2000 80, 108 [70].

⁷ 19.5 tons of various sorts of frozen halibut, 3.2 tons of ray, 4.9 tons of cod and no less than 3 tons of other kinds of bottom fish. Tomimaru, (n 3), [22]–[25]. The fishing licence allowed to fish 1,163 tons of walleye pollack and 18 tons of herring from 1 October to 31 October 2006; ibid [23].

⁸ Hoshinmaru (n 75) [27]–[30]. The fishing licence was provided for 101.8 tons of sockeye salmon, 161.8 tons of chum salmon, 7 tons of sakhalin trout, 1.7 tons of silver salmon and 2.7 tons of spring salmon, to catch in three areas of the EEZ between 15 May and 31 July 2007. Ibid [28].

⁹ Application of Japan (6 July 2007) <www.itlos.org/case_documents/2007/document_en_282.pdf> accessed 20 April 2008 [13].

¹⁰ The provisional investigation had also revealed that the Master had failed to fulfil requirements contained in other laws and regulations. Whereas he was charged under the Criminal Code, it is not clear how the other violations were prosecuted, if at all prosecuted. At the hearing, the Deputy Agent for the Respondent indicated that the ‘penalties in relation to the present case included three elements: first, administrative or criminal responsibility of the Master … ’. ITLOS/PV.07/2, Verbatim Record (20 July 2007) <www.itlos.org/case_documents/2007/document_en_285.pdf> accessed 20 April 2008, 11. Emphasis added.

¹¹ Hoshinmaru (n 2) [35]–[36].

¹² M/V Saiga (Saint Vincent and the Grenadines v Guinea) (Prompt Release, Judgment of 4 December 1997) ITLOS Reports 1997 10, 35 [77]. Article 292(1) says: ‘Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree’. The provisions in the Convention which expressly contain the duty of prompt release are Article 73(2), Article 220(6) and (7) and Article 226(1)(c); ibid [52].

¹³ Application (n 9) [20]. The Northeast Border Coast Guard Directorate of the Federal Security Service of the Russian Federation informed on 2 June 2007 the Consul-General of Japan of the detention of the Hoshinmaru. Prompt notification of the flag State is a duty of the detaining State under Article 73(4) of the Convention.

¹⁴ ibid [15]–[19] (communications of 6, 8, 9, 12 and 21 June 2007).

¹⁵ Statement in Response of the Russian Federation (15 July 2007) <www.itlos.org/case_documents/2007/document_en_283.pdf> accessed 20 April 2008 [19]–[20].

¹⁶ ibid [21], [23]. The Application of Japan was filed with the Tribunal on 6 July. Before the Tribunal, the Deputy Agent for Russia announced that the bond had been reduced to 22 million roubles, taking account of a re-evaluation of the vessel by Russia. ITLOS/PV.07/2, above (n 83) 12–13.

¹⁷ Hoshinmaru (n 75) [62].

¹⁸ ‘It would … be absurd if an applicant were obliged by the setting of an unreasonable bond to withdraw its application and to draw up a fresh application’. ITLOS/PV.07/1, Verbatim Record (19 July 2007) <www.itlos.org/case_documents/2007/document_en_284.pdf> accessed 20 April 2008, 10–11.

¹⁹ Hoshinmaru (n 75) [66].

²⁰ Above (n 12) [77].

²¹ ITLOS/PV.07/2 (n 83) 15 (argument for the respondent).

²² Hoshinmaru (n 10) [80].

²³ Saiga (Prompt Release) (n 12) [82].

²⁴ Hoshinmaru (n 2) [79]. The Tribunal did not address the issue of whether the fixing of a bond after the Application was lodged was reasonable. Article 300 of the Convention demands that States fulfil their obligations in good faith and that they exercise their rights in a manner that does not constitute an abuse of right. Under Article 292(1), an application for prompt release may be filed 10 days after the detention of the vessel and its crew, that is, the date of its apprehension.

²⁵ Camouco (Panama v France) (Prompt Release, Judgment of 7 February 2000) ITLOS Reports 2000 10, 28 [54].

²⁶ See below n 108 and accompanying text.

²⁷ Article 292(1) says: ‘ … it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew … ’ Emphasis added. Theoretically, a coastal State could detain certain crew members and allow the vessel to leave. Practically, though, the vessel and its catch are the substantive assets at stake; in addition, imprisonment and other forms of corporal punishment are prohibited by article 73(3). Lagoni argues that, in effect, the detention of the crew alone also amounts to a detention of the vessel, for a released vessel without its crew would be further delayed in leaving. Lagoni, R, ‘The Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea: A Preparatory Report’ (1996) 11 International Journal of Marine and Coastal Law 147, 159Google Scholar.

²⁸ Application (n 9) [41]. See also ITLOS/PV.07/1 (n 91) 7.

²⁹ Statement in Response (n 15) [16]. The Agent for Russia explained: ‘[T]he members of the crew, with the exception of the Master, have never been actually detained … [A]s foreign sailors, they do not have formal permission to go ashore on the territory of the Russian Federation … [I]n order to get such a permission the owner of a foreign vessel or its agent has to apply for it to the competent Russian authorities … Once the crew members are given this permission, they can go ashore, buy tickets and fly home’. ITLOS/PV.07/2 (n 10) 4. He also claimed that the crew cannot be considered in detention because someone has to take care of the vessel and the fish; ibid.

³⁰ ibid.

³¹ Camouco (n 25) [71]. This concerned the procedure of judicial supervision under French law. Tullio Treves, now a Judge at the Tribunal, defined detention as ‘all cases in which the movement of a vessel or of its persons is prevented by authority’. Treves, T, ‘The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea’ (1996) 11 International Journal of Marine and Coastal Law 179, 182CrossRefGoogle Scholar.

³² Saiga (Prompt Release) (n 12) [71].

³³ Hoshinmaru (n 2) [77].

³⁴ ibid [102(4)]. Judge Treves pointed out that ‘this provision should not be read as concerning the release of the Master and crew from detention. It ought to be read, instead, as a complement to the provision for the release of the vessel. Its function is to prevent resort to conditions of any kind, bureaucratic or otherwise, concerning the departure of Master and crew, that might delay the departure of the vessel’. Decl. Treves <www.itlos.org/case_documents/2007/document_en_298.pdf> accessed 20 April 2008, 2. The same language was used by the Tribunal in the Juno Trader case, where the status of the crew was also in dispute, for St Vincent argued that the passports of the crew members had yet to be returned. In its Judgment, the Tribunal mentioned that in a letter of 15 December 2004, Guinea-Bissau informed it that all crew members were free to leave. In its operative part, the Judgment says that the crew members shall be free to leave Guinea-Bissau without any conditions. Juno Trader (n 78) [104(4)]. The Master had been fined €8,770, which he paid without admission of liability.

³⁵ Application of Japan (6 July 2007) <www.itlos.org/case_documents/2007/document_en_287.pdf> accessed 20 April 2008 [14]. The Agent for Russia indicated that administrative proceedings had been instituted against the Master on 3 November. ITLOS/PV.07/5, Verbatim Record (21 July 2007) <www.itlos.org/case_documents/2007/document_en_290.pdf> accessed 20 April 2008, 6. But it seems that no administrative case was begun.

³⁶ ibid [17].

³⁷ Tomimaru (n 35) [31].

³⁸ Application (n 35) [16].

³⁹ ibid [18]. The Master appealed to the Kamchatka District Court and paid the fine of 500,000 roubles but not the damages of 9 million roubles. He was allowed to return to Japan on 30 May 2007; ibid. The case was still pending when the Tribunal delivered its Judgment.

⁴⁰ Statement in Response of the Russian Federation (17 July 2007) <www.itlos.org/case_documents/2007/document_en_288.pdf> accessed 20 April 2008 [15].

⁴¹ ibid [13]–[14]. The owner had already made a petition to the Northeast Border Coast Guard Directorate on November 30 for a bond to be fixed for the release of the vessel. Application (n 108) [19].

⁴² ITLOS/PV.07/4, Verbatim Record (21 July 2007) <www.itlos.org/case_documents/2007/document_en_289.pdf> accessed 20 April 2008, 11 (Agent for the Applicant).

⁴³ ibid.

⁴⁴ ibid [12].

⁴⁵ Tomimaru (n 3) [39]. ‘This ruling was never contested by the attorneys of the owner of the vessel, though from a legal point of view such an opportunity existed’. Statement in Response (n 40) [18]. The vessel was considered material evidence in the criminal proceedings; ibid [28].

⁴⁶ ITLOS/PV.07/4 (n 42) 12.

⁴⁷ The Deputy Agent for Russia said that the Master could have applied to the investigator in charge of the criminal case to set a bond, but that he never did so. He also indicated that ‘the decision to free the vessel could be adopted only after the ship-owner, who is responsible for the illegal acts of the Master … , had complied with two conditions: first, to present a claim to introduce a bond commensurate with the damage and, secondly, to make payment of the bond practically’. ITLOS/PV.07/5, above (n 108) 8. The State Sea Inspection, which had been asked by the owner to set a bond in the administrative case, ‘took all the materials and passed them to the criminal case, so it did not have powers to resolve that issue … and the administrative case was passed to the court’. ibid 9.

⁴⁸ ITLOS/PV.07/7, Verbatim Record (23 July 2007) <www.itlos.org/case_documents/2007/document_en_292.pdf> accessed 20 April 2008, 3, 5–6.

⁴⁹ In the Saiga case the Tribunal overlooked a possible lapse in registration. St Vincent maintained at all times that it was the flag State, and issued a permanent certificate of registration two months after the expiration of the provisional certificate. In the Grand Prince case, however, the issue was posed in a different context: the owner was planning to reflag the vessel in Brazil at the time it was arrested, and the Belizean authorities stated that they were awaiting the outcome of the case to decide on deregistration. Moreover, the case involved the reflagging of a fishing vessel, a problem that has attracted international concern. Oxman, B H and Bantz, V P, ‘The Grand Prince’ (2002) 96 American Journal of International Law 219, 222Google Scholar. See M/V Saiga (No.2) (Saint Vincent and the Grenadines v Guinea) (Merits, Judgment of 1 July 1999) ITLOS Reports 1999 10. In the Juno Trader case, there had been a considerable amount of confusion on the legal effect under the laws of Guinea-Bissau of a decision by an administrative body to confiscate the vessel. See Bantz, V P, ‘Views from Hamburg: The Juno Trader Case or How to Make Sense of the Coastal State's Rights in the Light of its Duty of Prompt Release’ (2005), 24 University of Queensland Law Journal 414, 422Google Scholar.

⁵⁰ See Exchange of Greek and Turkish Populations (Advisory Opinion) PCIJ Rep Series B No 10, 20.

⁵¹ This was not the view of Judge Yanai, who noted the intricacy of the procedure in Russian law and considered that the bond was not fixed in the administrative case. For him, ‘arrested vessels and their crews shall be promptly released upon the posting of a reasonable bond … without being subjected to parallel bonds … National prompt release procedures … should be simple and transparent’. Decl. Yanai <www.itlos.org/case_documents/2007/document_en_303.pdf> accessed 20 April 2008.

⁵² The Master had been placed under a regime of judicial supervision and the investigating magistrate had rejected the Master's request for release from judicial supervision on the same day it was made. Under French law, judicial supervision is different from, and does not entail, provisional detention pending trail. Although a person under judicial supervision may be required to surrender a passport or post security, he is not thereby released from judicial supervision. B H Oxman and V P Bantz, ‘The Camouco’ (2000) 94 American Journal of International Law 713, 716. The issues were similar in the Monte Confurco case where France was also the Respondent.

⁵³ Volga (Russian Federation v Australia) (Prompt Release, Judgment of 23 December 2002) ITLOS Reports 2002 10.

⁵⁴ The Master had paid the fine but not the damages. See above (n 39).

⁵⁵ See Continental Shelf Case (Tunisia/Libya) (Merits) [1982] ICJ Rep 18, 59. Vice-President Wolfrum regretted the lack of transparency in the appreciation of evidence by the Tribunal, which for him should be fully reasoned. Saiga (No 2) (n 49), 92 [2], Sep. Op. Wolfrum. One can note, however, that a reasoned judicial decision is not necessarily the same thing as a transparent one. Oxman and Bantz (n 52) 721.

⁵⁶ Erik Franckx, ‘‘Reasonable Bond’ in the Practice of the International Tribunal of the Law of the Sea' (2001–2002) California Western Law Journal 303, 323. Attempts to restrict the discretionary powers of judges on this point, such as by preventing the bond to exceed the value of the vessel, proved unsuccessful; ibid 324.

⁵⁷ Camouco (n 25) [67]. This is by no means a complete list. Monte Confurco (n 6) [76]. The Tribunal will have regard to all the circumstances of the particular case. Volga (n 53) [65].

⁵⁸ Monte Confurco (n 6) [76].

⁵⁹ ibid [73].

⁶⁰ Juno Trader (n 5) [89].

⁶¹ Hoshinmaru (n 2) [88].

⁶² See above (n 8).

⁶³ ITLOS/PV.07/1 (n 18) 5. The bond was computed as follows: 500,000 roubles as maximum imposable fine on the Master, 2,001,365.05 roubles as maximum imposable fine on the owner, 240,000 roubles in procedural costs, 7,929,500 roubles as penalty for damages caused by illegal fishing, and 11,350,000 as the value of the vessel. Hoshinmaru (n 12) [51].

⁶⁴ ITLOS/PV.07/1, 15.

⁶⁵ ibid 17–18.

⁶⁶ ITLOS/PV.07/2 (n 10) 7. ‘If the substitution of the species on Hoshinmaru vessel had not been revealed … then the 20 tons of raw sockeye salmon would simply have been stolen … This offensive act could not be considered as a purely technical error … This fishing can only be legal when it is executed in compliance with all the applicable rules and norms established by the coastal State, including timely and exhaustive reporting of data on species’; ibid 10–11.

⁶⁷ Statement in Response (n 15) [60].

⁶⁸ Hoshinmaru (n 2) [93]. In the Camouco case, the issue of the French version of the Convention arose, which in Article 73(2) mentions a ‘sufficient’ guarantee. Article 292(1), however, mentions ‘reasonable’. However, France did not rely on the word suffisante. The applicant (Belize) noted this fact and declared that it was sufficiently clear that the words used in the Convention, and interpreted in this case, is ‘reasonable’ as opposed to ‘sufficient’. The Tribunal did not address the issue, but Judge Anderson invoked the French text in his dissenting opinion. Oxman and Bantz (n 52) 717. ‘What is ‘reasonable’ is an amount suffisant/sufficient to cover penalties which could be imposed upon conviction. There exists the danger of fixing the security under article 292 at a level which, being too low, could in practice “prejudice …  the merits of [the] case”’. Camouco, (n 25), 57, Dis. Op. Anderson.

⁶⁹ Hoshinmaru (n 2) [89]. This is taken from Monte Confurco (n 6) [74].

⁷⁰ Monte Confurco (n 6) [88]. The issue had also arisen in the Camouco case: French law requires that fishing vessels entering the EEZ of the French Southern and Antarctic Territories indicate their presence and declare what tonnage of fish they have on board. Failure to do so raises the presumption that all the fish was unlawfully fished in the French EEZ. The underlying question is whether such measures violate the freedom of navigation in the EEZ. Oxman and Bantz (n 52) 715.

⁷¹ eg Judge Mensah: ‘[S]ome of the statements come perilously close to an attempt by the Tribunal to enter into the merits of the case … [A]ny ‘examination’ of the facts must be limited to what is strictly necessary for an appreciation of the reasonableness or otherwise of the measures taken by the authorities of the arresting State'. Monte Confurco (n 79) 118, 121, Decl. Mensah. Judge Jesus considered that the Tribunal had preempted the domestic court from exercising its full competence on the merits; ibid 142 [25], Dis. Op. Jesus. Judge Mensah recently repeated his views, asking whether the facts and circumstances of the case can include those that go to demonstrate the strength or weakness of the case against the vessel, and claiming that the Tribunal should not take or express a view on the soundness of the charges against the vessel. T A Mensah, ‘The Tribunal and the Prompt Release of Vessels’ (2007) 22 International Journal of Marine and Coastal Law 425, 444, 446.

⁷² Hoshinmaru (n 2) [98]–[99]. The proper management of fishing resources, as part of the achievement of sustainable fisheries, has been emphasized again recently by the UN General Assembly. See UN Doc A/62/260 (2007). For Judge Yanai, the offence was not likely to cause damage to the Russian EEZ, and the bond should have been set at a lower level. Sep. Op. Yanai <www.itlos.org/case_documents/2007/document_en_301.pdf> accessed on 20 April 2008 [3].

⁷³ Hoshinmaru (n 6) [98]–[99]. That framework consists of two agreements concluded on 7 December 1984 and 12 May 1985.

⁷⁴ Monte Confurco (n 6) [76]; Volga (n 126) [68]. The context of the dispute forms part of the circumstances of the case which allow the Tribunal to assess the gravity of the offence. However, it is important to note that a bond is fixed for a particular offence.

⁷⁵ ITLOS/PV.07/3, Verbatim Record (20 July 2007) <www.itlos.org/case_documents/2007/document_en_286.pdf> accessed on 20 April 2008, 6.

⁷⁶ See (n 65).

⁷⁷ Hoshinmaru (n 2) [93]. See article 8.17(2) of the Code of Administrative Offences, ibid [36]. Judge Kolodkin disagreed and found that the bond set by the Tribunal did not take account of the gravity of the offence and was inconsistent with the practice of the Tribunal, which includes the value of the vessel as a rule. Decl. Kolodkin <www.itlos.org/case_documents/2007/document_en_297.pdf> accessed 20 April 2008.

⁷⁸ Camouco (n 25) [58].

⁷⁹ Bantz (n 49) 437. The Tribunal clearly emphasized that it cannot assess whether the conditions of the arrest were lawful. Volga (n 53) [83]; Juno Trader (n 78) [95]. But this is different from the assessment of the gravity of the alleged offence by the Tribunal. It is also important to note that such assessment has to be made quickly, for the Tribunal must render its judgment not later than 14 days after the closure of the hearing under Article 112(4) of the Rules of the Tribunal. There is thus an inherent limit to the extent to which the Tribunal could take cognizance of the facts in dispute and seek evidence. Monte Confurco (n 6) [74].

⁸⁰ It is true that a coastal State which imposes a confiscation on the merits is not bereft of any remedy if the owner does not comply with the judgment. The State can start proceedings in the jurisdiction where the vessel is located and various conventions exist on international cooperation in civil or criminal matters. See B H Oxman and V P Bantz, ‘Un droit de confisquer? L'obligation de prompte mainlevée des navires’ in V Coussirat-Coustère et al, La mer et son droit. Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (Paris Pedone 2003) 479, 495.

⁸¹ Oxman and Bantz (n 49) 224. It does not seem correct to read in the factors chosen by the Tribunal to fix the bond the idea that the Tribunal struck the balance in favour of flag States. Rothwell, Contra D R and Stephens, T, ‘Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests’ (2004) 53 International and Comparative Law Quarterly 171, 183CrossRefGoogle Scholar.

⁸² In the Camouco case, the late Judge Laing examined the relation between the bond fixed by the Tribunal and the aggregate potential liability under domestic law and between the bond requested by the detaining State. Camouco (n 25) 43–44, Decl. Laing. While Tanaka correctly writes that the ratio between the amount of the bond to be posted and the aggregate potential liability provides no objective criterion, it cannot be said that ‘from the case-law, it appears that the Tribunal did not support the idea of proportionality’. Tanaka, Yoshifumi, ‘Prompt release in the United Nations Convention on the Law of the Sea: Some Reflections on the ITLOS Jurisprudence’ (2004) 51 Netherlands International Law review 237, 267CrossRefGoogle Scholar. The proportionality that is taken into account is one between the bond and the offence.

⁸³ ITLOS/PV.07/1 (n 18) 16. He continued: ‘The bond should reflect only the fines that can reasonably be envisaged as being within the range of possible penalties that might be imposed’; ibid 17.

⁸⁴ Devine, D J, ‘Relevant Factors in Establishing a Reasonable Bond for Prompt Release of a Vessel under Article 292(1) of the United Nations Convention on the Law of the Sea 1982’ (2002) 27 South African Yearbook of International Law 140, 144Google Scholar.

⁸⁵ Contra Camouco (n 25) 50–51, Dis. Op. Anderson; see also Monte Confurco (n 6) 127 et seq, Dis. Op. Anderson, and Camouco (n 25) 68 [6], Dis. Op. Wolfrum. As put by Vice-President Nelson, ‘the Tribunal has in fact been invested with the competence to limit— to put a break on—the discretionary power of the coastal State with respect to the fixing of bonds in certain specific circumstances’. Monte Confurco (n 6) 124, Sep. Op. Nelson.

⁸⁶ Franck (n 56) 334.

⁸⁷ Only in the Volga case was the amount of the bond easily identifiable with the aggregate value of the vessel, fuel, lubricants and fishing equipment as assessed by the respondent and not disputed by the applicant. Bantz (n 49) 442. The cargo will not be released when difficulties might be incurred in restoring it to the vessel if it had been discharged, or when it is seized or sold by the detaining State. Thus, when the release of the cargo is not ordered, the discharged cargo (or its monetary equivalent) or, if the cargo was sold, the proceeds of the sale, will be a guarantee kept by the detaining State. See also Devine, above (n 81) 147. The Tribunal, however, has not always attributed the same function to that guarantee. In the Camouco case it probably included it in its assessment of an overall reasonable bond. In the Monte Confurco case it considered it an additional security to be held by the detaining State. In the Volga case it did not take it into account. Bantz (ibid) 440–441. To date, the Juno Trader and Hoshinmaru cases are the only instances where the Tribunal ordered the release of the cargo together with the vessels, for the fish was still aboard when the Tribunal delivered the judgments. In the Saiga (Prompt Release) case, no bond had been requested and no penalty was imposed or imposable, as no domestic case had been launched. The Tribunal found it reasonable that the bond consist of the amount of gasoil discharged plus $400,000.

⁸⁸ Hoshinmaru (n 2) [85]. Such procedure would help prevent disputes; ibid.

⁸⁹ No such agreement was found to exist in the case at hand. Russia claimed that, in the course of sessions of the Joint Commissions established under the bilateral agreements, it was agreed that the criteria to be applied would take account of the potential fines and of the value of the vessel. Japan disagreed and raised a linguistic problem. ITLOS/PV.07/3 (n 148) 3. Looking at the terms of the minutes of the meetings and the particular circumstances, the Tribunal found that no agreement could have been constituted; Hoshinmaru (n 2) [86].

⁹⁰ The Tribunal, having found that the Application was without object, did not have the opportunity to examine the reasonableness of the bond that was fixed by Russia. The Advocate for Japan indicated that the case focused more ‘on deficiencies in the process leading to the setting of the bond than it [did] on the level of the bond itself … This was a case of catching species that the vessel was not licensed to catch, a clear caser of unlawful fishing’; ITLOS/PV.07/4 (n 42) 7–8.

⁹¹ Hence the author asked: ‘Is there an option of rapid confiscation that renders effectively meaningless the obligation to release a ship … ? Would an affirmative response encourage a rush to judgment in criminal proceedings that poses a risk of human rights violations? Or encourage a rush to the Tribunal that would afford municipal courts less opportunity to consider the question of release?’ Oxman and Bantz (n 49) 223. Belize maintained that the confiscation was intended to evade the duty of prompt release; France, on the other hand, argued that the confiscation had rendered Article 292 proceedings without object; ibid 220.

⁹² Oxman and Bantz (n 80) 492–494. Indeed, the Tribunal found that a reasonable bond under Article 73(2) guarantees the execution of a final decision on the merits. See Camouco (n 25) [76]; Monte Confurco (n 6) [95]; Juno Trader (n 5) [102].

⁹³ Juno Trader (n 5) [62], [67]–[68]. For a case comment, see also E Sessa, ‘La decisione dell'International Tribunal of the Law of the Sea nel caso Juno Trader’ (2006) 108 Il Diritto Marittimo 1116.

⁹⁴ Tomimaru (n 3) [78]. Judge Lucky found this statement unnecessary. Sep. Op. Lucky <www.itlos.org/case_documents/2007/document_en_305.pdf> accessed on 20 April 2008 [3].

⁹⁵ ibid [42]–43].

⁹⁶ Statement in Response (n 40) [23].

⁹⁷ ITLOS/PV.07/5 (n 35) 3. ‘The principal task of the supervisory procedure is to guarantee uniformity in the application of legal norms … Secondly, decisions upheld in the course of an appeal can be annulled at a supervisory stage if they infringe human and civil rights and freedoms proclaimed by universally recognized principles and the norms of international law and international treaties of the Russian Federation’; ibid 4. The Advocate for Japan stated before the Tribunal: ‘[E]ven if the Supreme Court's letter had some legal force in Russian law, which we must say is not yet proven, the issue is whether Article 292 … prevents the Tribunal from holding jurisdiction in a case where the domestic legal decision, which has biding effect, is actually pending in a legal proceeding at the end of which that decision … could be annulled’. ITLOS/PV.07/6, Verbatim Record (23 July 2007) <www.itlos.org/case_documents/2007/document_en_291.pdf> accessed on 20 April 2008, 3.

⁹⁸ Tomimaru (n 3) [46].

⁹⁹ Mavrommatis Palestine Concessions Case (Greece v United Kingdom) (Jurisdiction) PCIJ Rep Series A No 2, 34.

¹⁰⁰ Tomimaru (n 3) [68], [79]. See also Hoshinmaru (n 2) [64]: ‘While the Tribunal takes the view that, in principle, the decisive date for determining the issues of admissibility is the date of the filing of an application, it acknowledges that events subsequent to the filing … may render an application without object’.

¹⁰¹ ibid [72]. In it Application, Japan stated that if confiscation of arrested vessels were permitted, the prompt release obligations would be evacuated of all practical meaning. Application (n 35) [53]. If this was meant to be a general statement, this is incorrect. The problems are not articulated in the same way in article 230, for only monetary penalties may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment committed by foreign vessels within and beyond the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea. For the duty of prompt release under Part XII, see article 226(1)(b).

¹⁰² ibid [70]. See also Juno Trader (n 5) [63] and 60–62 [9], [11], Joint Sep. Op. Mensah and Wolfrum. Indeed, there is a distinction between lack of jurisdiction to deal with the merits under article 292(3) and the power of a court or tribunal to examine its own jurisdiction under article 292(1). The latter includes the jurisdiction to determine whether vessels and crews are in detention and, therefore, whether the duty to release on bond still exists. Bantz (n 49) 430.

¹⁰³ Tomimaru (n 3) [74]. See (n 6).

¹⁰⁴ Oxman and Bantz (n 80) 497; Bantz (n 49) 429.

¹⁰⁵ Tomimaru (n 3) [75].

¹⁰⁶ ibid [76].

¹⁰⁷ The Tribunal noted that ‘there is a connection between paragraphs 2 and 4 of article 73, since absence of prompt notification may have a bearing on the ability of the flag State to invoke article 73, paragraph 2, and article 292 in a timely and efficient manner’. Camouco, (n 25), [59]. While a breach of Article 73(4) is not within the jurisdiction of a court or tribunal under Article 292, such breach may have an impact on the issue of whether the vessel has still to be considered in detention, that is, whether the final decision to confiscate should be recognized.

¹⁰⁸ Judge Yanai emphasized that Japan had waited too long before filing the Application. Decl. Yanai, (n 51) [2.] See also Sep. Op. Lucky (n 94) [10]. See also Juno Trader (n 5) 63, [14], Joint Sep. Op. Mensah and Wolfrum. In the Hoshinmaru case, Judge Türk considered that the time of detention of the vessel and crew should not exceed approximately two months. Decl. Türk <www.itlos.org/case_documents/2007/document_en_300.pdf> accessed 20 April 2008, 2.

¹⁰⁹ Juno Trader (n 5) [77].

¹¹⁰ ibid 58, 62, [4], [12], Joint Sep. Op. Mensah and Wolfrum. In particular, the procedure under Article 292 could not be set aside by mere administrative action; ibid [12].

¹¹¹ Tomimaru (n 3) [76].

¹¹² Juno Trader (n 5) 73–74 [6], Sep. Op. Treves.

¹¹³ Tomimaru (n 3) [79].

¹¹⁴ Judge Nelson was of the opinion that these matters should not be dealt with under Article 292. Decl. Nelson <www.itlos.org/case_documents/2007/document_en_302.pdf> accessed 20 April 2008, 2. Judge Jesus disagreed with the Tribunal and considered that ‘the prompt release procedure does not seem to prevent the detaining State from confiscating a vessel at any stage after its detention’. Sep. Op. Jesus <www.itlos.org/case_documents/2007/document_en_304.pdf> accessed on 20 April 2008 [9(c)]. Under this view, one could imagine agents of the coastal State vested with powers of immediate final sanction on the merits at sea. This does not seem compatible with the balance established in the Convention. Oxman and Bantz (n 80) 496. The same issue is raised with a confiscation that arises from the automatic operation of the law. Sep. Op. Jesus [9(d)].

¹¹⁵ Under article 293 of the Convention, a court or tribunal must apply rules of international law not incompatible with the Convention. The Tribunal determined that considerations of humanity must apply in the law of the sea. Saiga (No 2) (n 49) [155]. The Convention expressly incorporates human rights standards in certain provisions, such as article 230(3) on the recognized rights of the accused. See B H Oxman, ‘Human Rights and the United Nations Convention on the Law of the Sea’ (1997) 36 Columbia Journal of Transnational Law 399. See also above (n 110). The rights concerned are to be evaluated in the light of contemporary international law, which arguably embodies rigorous standards. Bantz (n 49) 432 (citing Pope and Talbot Inc v Government of Canada (Award in Respect of Damages), North American Free Trade Agreement (Arbitral Tribunal) (2002) 41 ILM 1347, 1358).

¹¹⁶ See articles 111–112 of the Rules of the Tribunal. For a comment, see P Chandrasekhara Rao and Ph Gautier, The Rules of the International Tribunal for the Law of the Sea: A Commentary (Boston Martinus Nijhoff Publishers, Leiden, 2006).

¹¹⁷ Bantz (n 49) 431–432 (also citing Case Concerning Elettronica Sicula S.P.A. (ELSI) (United States of America v Italy) (Merits) [1989] ICJ Rep 15, 76, for a definition of arbitrariness).

¹¹⁸ Sep. Op. Lucky J (n 94) 7.

¹¹⁹ See Juno Trader (n 5) 74 [6], Sep. Op. Treves.