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VINCENT P BANTZ[∗]
On 18 December 2004, pursuant to article 292 of the United Nations Convention on the Law of the Sea[1], the International Tribunal for the Law of the Sea (‘Tribunal’) unanimously ordered the prompt release of a refrigerated cargo vessel (reefer vessel) and its cargo which had been arrested by Guinea-Bissau for fisheries violations in its exclusive economic zone (‘EEZ’).[2]
The application, filed on behalf of the flag State,[3]
contested the decision of a Guinea-Bissau administrative body which had confiscated the vessel and the catch and imposed several fines. The Tribunal unanimously decided that the vessel and its cargo be released upon the posting of a bond of €300,000 in the form of a bank guarantee and that the crew be free to leave without conditions.
In this, its seventh case on prompt release, the Tribunal made valuable contributions to its existing case law on the issue.[4] This article will therefore focus on these developments, considered in the light of broader reflections on particular issues raised by the prompt release procedure. Whereas this procedure has no international precedent and, therefore, no body of interpretative practice to rely on, the progressive and pragmatic answers given by the Tribunal to peculiar situations created by rights and duties determined and implemented in different domestic fora may prove that the fear of those who considered the prompt release procedure ‘unworkable’ was, perhaps, premature.[5]
The Juno Trader is a reefer vessel registered in Saint Vincent and the Grenadines and owned by a company registered in the British Virgin Islands, Juno Reefer Ltd, itself a branch of a South African seafood company called Irvin and Johnson Ltd. Its crew consisted of twenty members, all but one being of Russian nationality.[6]
From 19 to 23 September 2004, while in Mauritanian waters, the Juno Trader loaded fish that were caught in the Mauritanian EEZ by its sister ship, the Juno Warrior, which operated under a Mauritanian fishing licence. The transhipments consisted of 1183.83 tons of frozen fresh fish and 112 tons of fish meal. The Juno Trader had been authorised in its certificate of registry to transport refrigerated dry products. When the operation was complete the reefer navigated towards Tema, Ghana, where the cargo was to be delivered to Unique Concerns Ltd, a company which, in the meantime, had become the new owner of the cargo. On 26 September, while crossing the EEZ of Guinea-Bissau, the vessel was boarded by a vessel of the Guinea-Bissau navy after two and a half hours of hot pursuit and then conducted to the port of Bissau where it arrived one day later.
Upon being boarded the Master of the vessel was served with, but refused to sign, a ‘notice of serious fishing infraction’ which reported that the Juno Trader had been discovered anchored parallel to the Flipper, a fishing vessel engaged in fishing, and that it weighed anchor and fled when it spotted the inspection vessel.[7]
Although Counsel for Guinea-Bissau had indicated that during the vessel’s stay in the Port of Bissau the crew members were never confined to the vessel and that their passports were returned to them when requested,[8] Deputy Agent for Saint Vincent announced to the Tribunal that the passports of six crew members were still in the hands of the authorities of the respondent.[9] On 18 October 2004 the Fisheries Control Technical Committee of Guinea-Bissau (‘Committee’) determined in Minute No 12/CIFM/04 that no documentary evidence was found concerning the destination of the vessel and the fishing products on board and that the species found on board were similar to those existing in the waters of Guinea-Bissau.[10]
Therefore, the Committee proposed that it be found that the Juno Trader had violated the fishing legislation of Guinea-Bissau regarding operations related to fishing and, consequently, that it be fined €175,398, that the Master be fined €8,770 for lack of cooperation, and that the cargo of fish revert to the State on suspicion of unauthorised transhipment. On 19 October, the Interministerial Maritime Control Commission (‘IMCC’) endorsed these proposals in Minute No 14/CIMF/04, considering the catch ‘to have been caught and transhipped in the maritime waters of Guinea-Bissau without proper authorisation’. The IMCC ordered that the total fine, in the amount of € 184,168, be deposited with the Public Treasury within fifteen days of the notification of the Minute.[11]
On 27 October the local representative of the shipowner was informed that the cargo of fish would be unloaded from the vessel and sold at a public auction on 29 October, in compliance with the decision of the IMCC to confiscate the fish.[12] In a letter of 29 October the shipowner’s representative requested the IMCC to reconsider its decision and release the ship on the basis of a clarification of facts and, on 1 November, he requested an extension of fifteen days for the payment of the fines imposed upon the vessel.[13]
During the hearing, however, the Co-Agent for Guinea-Bissau indicated that only on 1 November did the vessel’s representatives submit documents ‘purportedly proving that the cargo had been transhipped elsewhere’. At that time, the IMCC could no longer amend its decision.[14] On 3 November the fine of €8,770 imposed on the Master was paid without admission of liability and on 18 November a bond of €50,000 was posted with the authorities of Guinea-Bissau by the P&I Club of the shipowner in return for the release of the ship and its crew.[15]
On 23 November, upon application of the shipowner filed on 16 November for an injunction requesting that the decision of the IMCC be suspended, the Regional Court of Bissau ordered the ‘immediate suspension of the execution of Minute No 14/CIFM/04 … pending a definitive settlement’. The order included the immediate cancellation of the sale of the fish, the immediate lifting of the prohibition imposed upon the crew members from leaving the Port of Bissau, and the immediate suspension of the payment of the fine imposed on the Master.[16]
However, the National Fisheries and Inspection Service of Guinea-Bissau indicated in a letter of 3 December addressed to the representative of the shipowner that ownership of the Juno Trader had reverted to the State of Guinea-Bissau with effect from 5 November for failure to pay the fine originally imposed by the IMCC.[17]
At the time the application was filed it was indicated that the fish meal would not be affected by the decision to sell the cargo of fish by public auction.[18] Before the Tribunal, the local representative of the shipowner confirmed that the cargo was still on board the vessel in a frozen state.[19]
The prompt release procedure before the Tribunal is characterised by its swiftness. According to the Rules of the Tribunal (Rules), the Tribunal shall give priority to applications for release of vessels or crews over all other proceedings.[20] The hearing must take place within a period 15 days commencing with the first working day following the date on which the application is received and the judgment must not be read later than 14 days after the closure of the hearing.[21] Prompt release proceedings are largely oral; the application is directed to contain a ‘succinct’ statement of the facts and legal grounds upon which the application is based.[22] The Tribunal in the Juno Trader case, however, was confronted for the first time with the absence of a written response by the respondent. Only on 6 December, when the hearing began, did Guinea-Bissau submit a bundle of documents to the Tribunal which were communicated to Saint Vincent.[23]
According to the Rules, the detaining State ‘may’ submit a statement in response to the application, to be filed as soon as possible but not later than ninety-six hours before the hearing.[24] Such statement enables the legal position of the respondent to be known to the applicant at least four days before the hearing, whereas the position of the applicant is known to the respondent as soon as the application is transmitted to it.[25]
Counsel for the applicant indicated to the Tribunal that he only had one night to study the arguments of the respondent and, therefore, that the Tribunal might want to ‘grasp this opportunity to review the rules of procedure so that greater or more straightforward equity may be established between the parties’.[26] The Tribunal did not address this issue as the filing of a statement in response is not an obligation. However, it noted that it had postponed the hearing to 6 December by Order of 1 December in response to Guinea-Bissau’s request. In the same Order, the time-limit for the filing of the statement in response was extended to 2 December.[27]
On that day, however, the Agent of Guinea-Bissau informed the Tribunal that the respondent was not in a position to file a statement in response.[28]
It is established that international proceedings are not governed by the same procedural rigour that may regulate many countries’ domestic proceedings.[29] This ensures that parties to international proceedings, which are essentially pars inter partes (the same is not necessarily true of domestic proceedings), are not put at a disadvantage. Such disadvantage, however, may occur when the application of procedural rules leads to one party gaining an unfair advantage over the other party.[30] The Convention itself directs States Parties to fulfil their obligations in good faith and to exercise their rights in a manner which would not constitute an abuse of rights.[31] Procedural guarantees in domestic proceedings are an essential element of the effective enjoyment of rights conferred by the Convention.[32] It is also clear that such guarantees are essential for parties before the Tribunal to make an effective representation of their claims. One can therefore expect that the Tribunal answer these concerns in future cases.[33]
Of the few provisions where the duty of prompt release is expressly mentioned in the Convention, article 73 states:
1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.
2. Arrested vessels and crews shall be promptly released upon the posting of a reasonable bond or other security.
3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.
4. 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.[34]
Article 292 of the Convention establishes the compulsory jurisdiction of a court or tribunal to decide on the prompt release of vessels and crews arrested by the coastal State where the duty of prompt release upon the posting of a reasonable bond is expressed elsewhere in the Convention. Article 292 reads:
1. 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 Tribunal for the Law of the Sea, unless the parties otherwise agree.
2. The application for release may be made only by or on behalf of the flag State of the vessel.
3. The court or tribunal shall deal without delay with the application for release and 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. The authorities of the detaining State remain competent to release the vessel or its crew at any time.
4. Upon posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.[35]
The Rules specify that before determining the amount, nature and form of the bond, the Tribunal must decide whether the allegation made by the applicant under article 292 is well-founded.[36] Such determination depends, in part, upon what the Tribunal came to classify as issues of jurisdiction and admissibility which bear a preliminary character although they are not dealt with in a separate phase of the judgment in the light of the urgency of the proceedings.[37]
Only when these issues are determined can the Tribunal decide whether article 73(2) has not been complied with and, if so, what the nature and amount of the bond should be.[38]
After determining that Saint Vincent and Guinea-Bissau were parties to the Convention and that no agreement had been reached within the ten-day period,[39]
the Tribunal dealt with the challenge to jurisdiction raised by the respondent according to which the Juno Trader was not flying the flag of Saint Vincent at the time the application was filed.[40] The reason advanced was the administrative decision of the IMCC that ownership of the vessel had reverted to the State with effect from 5 November.[41]
The Tribunal was therefore faced with the effect of a domestic decision rendered in the merits of the case. It is this issue which needs to be dealt with first.
1. Guinea-Bissau’s administrative decisions
There had been a considerable amount of confusion on the legal nature of the decision of the IMCC under the laws of Guinea-Bissau. The judgment itself only laconically indicates that that decision had been suspended by the Regional Court of Bissau.[42]
Whereas Counsel for the respondent had first stated that the final administrative decision of the IMCC could be challenged before a court,[43] in the same hearing (interrupted by a 15-minute break) he then told the Tribunal that the confiscation of the reefer ‘cannot be suspended, it cannot be changed, it cannot be revoked in any way, save by the approval of another law from the parliament [and] cannot be changed or suspended by a judge’.[44]
Yet during the same hearing Counsel for Guinea-Bissau indicated that suspension of enforcement of an administrative act may be ordered under certain conditions.[45] On the following day another Counsel for the respondent stated that the expiry of the 15-day period would not entail loss of the opportunity to lodge an appeal against the administrative decision.[46]
This uncertainty prompted members of the Tribunal to address written questions to the representatives of Guinea-Bissau. In answering these questions, Counsel for the respondent finally indicated that an administrative decision may be subject to review by a court of law. The administration itself can appeal the judgment of the court before the Supreme Court of Justice but such appeal does not suspend the execution of the decision of the court of first instance.[47] However, when confiscation takes place by operation of a statute, the forfeiture could not be challenged directly before the courts. The shipowner could, however, contest the legality of the arrest itself and claim compensation or annulment of the confiscation.[48]
2. The determination of ‘merits’ and non-final domestic decisions: vessels and crews ‘in detention’
Lack of clarity in the interpretation of the laws of a State Party will certainly be deplored, and it was not the first time that the problem was raised before the Tribunal.[49]
The Tribunal was satisfied that the Regional Court of Bissau had suspended the execution of the IMCC’s decision.[50]
This, however, raises various important points.
The Convention was negotiated as a package-deal and is based upon a complex net of rights and duties, sometimes deliberately drafted in broad or ambiguous terms, the articulation of which is, in the last resort, generally left to the determination of the international judge. This articulation aims at harmonizing interests that are sometimes divergent, if not conflicting. Therefore, the Convention must be interpreted in good faith and prohibits abuse of rights.[51] It must be interpreted while bearing in mind what the author called a ‘presumption of non-opposition between the provisions of an operational and effective whole’.[52]
The Tribunal itself recognised that article 73 ‘identifies two interests, the interest of the coastal State to take appropriate measures as may be necessary to ensure compliance with the laws and regulations adopted by it on the one hand and the interest of the flag State in securing prompt release of its vessels and their crews from detention on the other hand’.[53]
Certainly, to insist upon the prompt release of vessels and crews under any domestic circumstances may nullify the rights of the coastal State to ‘take such measures as may be necessary to ensure compliance’ with its laws. Alternatively, article 292 concerns vessels and crews in detention and excludes in its paragraph 3 the merits of the case from the jurisdiction of a court or tribunal. Therefore, to allow the coastal State to claim that any domestic decision on the merits terminates its duty of prompt release by putting an end to ‘detention’ would also disturb the balance established in the Convention.[54]
The potential for distortion is clear were one to regard a dispute on the duty of prompt release itself as a dispute on the exercise by the coastal State of its sovereign rights under article 73(1) if a decision on the merits has taken place.[55]
In a previous article, the author suggested that a way to resolve the problems of application of article 73 lies in the definition of ‘merits’ for the purpose of article 292.[56]
The scheme envisaged by article 292 makes it reasonably clear that the merits decided domestically would generally be preceded by previous phases relating to arrest and detention of the vessel and its crew.[57] In that context, the Tribunal has rightly been very cautious of legal qualifications of coastal States themselves and decided that it would not be bound by them.[58]
It therefore appears justified to give a functional interpretation to the notion of ‘merits’ in order to clearly distinguish between decisions on detentions and decisions dealing with the merits of the case. Lack of distinction may lead to the prompt release duty being emptied of its practicality.
Whereas, on the one hand, the Convention does not expressly prohibit confiscation for fisheries violations, but only imprisonment or any other form of corporal punishment,[59]
it is axiomatic that article 292 serves no purpose when the merits of the case have been decided pursuant to article 73(1). As has been emphasised, the merits of the case before the domestic forum, that is, the substantive issues of violation of fisheries laws of the coastal State, are excluded from the jurisdiction of a court or tribunal under article 292(3). The bond itself was never intended to be substituted for penalties imposed on the merits: it guarantees their enforcement. On the other hand, the Tribunal clearly established that a reasonable bond or financial security to be posted under article 73(2) will guarantee the execution of a final judgment or decision on the merits.[60]
Although the purpose and amount of the bond under the Convention will deploy their effects in the domestic order, they fulfil an autonomous function and are determined according to autonomous factors.[61] It is thus suggested that only such decisions as are final under the domestic legal order would qualify as decisions on the merits for the purpose of article 292, and would be the only ones capable of putting an end to detention and, therefore, of extinguishing the duty of prompt release. So long as ‘internal remedies have not been exhausted, the duty of prompt release applies and any internal decision rendering prompt release impossible will have the functional characteristics of a detention, … release from which must be insured’.[62]
For article 292 purposes, this entails the non-recognition of the effects of a judgment of confiscation if this judgment is not final.
In the Juno Trader case the Tribunal endorsed this scheme by considering that a domestic decision to confiscate the vessel, which was not final but was being challenged before a court which had suspended the execution of that decision, would not affect the jurisdiction of the Tribunal under article 292 or the admissibility of the application.[63]
One may wonder whether, in future similar cases, it will be required that the decision to confiscate be appealed and suspended domestically for the Tribunal to exercise its jurisdiction under article 292. This does not appear to be necessary. Surely, the fact that the decision is appealed shows that it is not final. But it is the non-final decision on the merits itself which, when it imposes a confiscation, will be characterised as detention for the purpose of article 292. The Tribunal itself made it clear that article 292 proceedings are independent of any similar domestic action, ruling out a requirement of exhaustion of domestic remedies.[64]
The non-final character of the decision will be determined by the Tribunal on the basis of evidence before it, including the nature of the legal system of the detaining State. On the other hand, any internal decision which is not appealed in time may become final under the domestic legal order. This issue is related to the problem of final domestic decisions on the merits and will be examined later.
3. Consequences
(a) Loss of nationality: The respondent challenged the jurisdiction of the Tribunal on the ground that Saint Vincent was no longer the flag State of the vessel in the light of the decision to confiscate.[65]
The Tribunal did not address the issue as it had found that the decision of the IMCC, which was not final and subject to review in the courts of Guinea-Bissau, had been suspended by the decision of the Regional Court of Bissau. Therefore, there had not been a definitive change in the nationality of the Juno Trader.[66]
However, one can note that the Tribunal stressed that the effect, if any, of a change of ownership upon nationality would be prompted by a definitive change, reinforcing the lack of effect of non-final domestic decisions on the merits.[67] In addition, the Tribunal had previously emphasized that it is for each State to determine the conditions for the grant of its nationality to ships and that the validity of registration of ships in a flag State may not be challenged by other States for an alleged lack of genuine link.[68]
Whereas the Convention is based on the premise that it is the owner of a ship who can register it in a particular State,[69] it also only enables the owner or the flag State to decide on the loss of such registration.[70] Any attempt to impose a nationality upon such ships as are already registered would have no legal effect.[71]
Pursuant to article 292(2) of the Convention, application for prompt release may be made only by or on behalf of the flag State. This, in itself, does not necessarily solve the question whether the flag State making the application should be the flag State of the vessel when the wrongful act prompting the application occurred.[72]
Article 292 is only partly analogous to diplomatic protection: when an action is filed on behalf of the flag State, the latter does not endorse the claim of individuals stricto sensu, but allows them access to a court or tribunal under article 292(1); in addition, the duty to promptly release on bond is owed to foreign flag States, not individuals, and the Tribunal made it clear that domestic remedies need not be exhausted for an application under article 292 to be admissible, even when domestic proceedings are still pending.[73]
The purpose of prompt release is to establish a balance between the interests of the flag State and those of the detaining State.[74]
Therefore, whatever the validity of the rule requiring continuity of nationality between the commission of the wrongful act and the presentation of an international claim,[75]
one can cast doubts on the applicability of such rule to an application submitted by or on behalf of a flag State allegedly deprived of its jurisdiction over vessels flying its flag by domestic proceedings of the detaining State.[76] At best, the determination of the consequences of such proceedings would fall under the jurisdiction of a court or tribunal under article 292(1) and would not constitute a bar to such jurisdiction, rendering the application itself moot.[77]
(b) Absence of detention: A court or tribunal under article 292 examines the application filed by or on behalf of a flag State when a vessel flying its flag is being detained by the authorities of another State Party.[78] The respondent argued that the application filed on behalf of Saint Vincent was inadmissible because the vessel was not detained but lawfully owned by Guinea-Bissau since its confiscation.[79]
The Tribunal concluded that the non-final character of the decision of the IMCC had the same consequence upon an alleged transfer of ownership as it did upon an alleged loss of nationality.[80]
Confiscation of vessels for fisheries offences is not expressly prohibited by the Convention and, in fact, widely practiced.[81] In that respect the issue is not, in the first instance at least, whether confiscation is prohibited, but how a final judgment confiscating the vessel impacts upon the duty of prompt release. According to the previous analysis, a confiscated vessel is no longer a detained vessel which benefits from article 73(2).[82]
The underlying assumption which supports article 292 is that vessels and crews in detention should be released on bond until the merits are finally decided. This implies that there may be cases where a confiscation (or a monetary penalty) ordered by a domestic authority may be difficult to enforce if the vessel and the crew members involved[83] do not subject themselves voluntarily to the jurisdiction of the coastal State to face a final sentence on the merits. Whereas Judge Anderson considered that the penalty of forfeiture is qualitatively different from a monetary penalty,[84]
it may be noted that in prompt release proceedings the balance between the interests of the flag State and those of the coastal State is established between the duty of prompt release and the duty to post a reasonable bond, not between the exercise by the coastal State of its enforcement powers and the duty of prompt release. The problem may thus be expressed as follows:
In this context, the question of the intent of article 73 might be posed starkly as follows: were the negotiators of the Convention—and the countless lawyers who reviewed it—sophisticated realists who understood that the duty to release promptly on reasonable bond might in practice mean limiting the penalty to the cash guaranteed by a bond whose reasonableness might be reviewed by a standing international tribunal unlikely to be hostile to coastal states interests?.[85]
Even if this were the case the coastal State is far from being bereft of any remedy beyond the possibility of cashing the bond: mechanisms of public or private international law are well known whereby the coastal State may request the State under the jurisdiction of which the vessel or the individuals concerned are found to assist it in the recognition and enforcement of its final decision on the merits. This may involve the non-recognition of any subsequent (fraudulent) registration of the vessel by its owners in order to give effect to the change of ownership pursuant to the confiscation judgment.
This, however, supposes that there is a valid final judgment on the merits. The Tribunal has yet to determine whether any final domestic judgment extinguishes the duty of prompt release. In the Juno Trader case the Tribunal made a pivotal dictum which sheds light on the prompt release procedure as a whole. The Tribunal noted:
The Tribunal considers that article 73, paragraph 2, must be read in the context of article 73 as a whole. The obligation of prompt release of vessels and crews includes elementary considerations of humanity and due process of law … The requirement that a bond or other financial security must be reasonable indicates that a concern for fairness is one of the purposes of this provision.[86]
Whereas the Tribunal has previously determined that ‘considerations of humanity must apply in the law of the sea, as they do in other areas of international law’,[87]
this is the first time that the Tribunal has linked fundamental human rights with the notion of due process and fairness. The Tribunal clearly established that the reasonableness of the bond itself encompasses the nature of domestic proceedings that led to the fixing of the bond or lack thereof. Therefore, such final domestic proceedings as emasculate the possibility of a fair procedure leading to release on bond should be viewed with great reservation. If any final decision delivered on the merits terminates the duty of prompt release, certainly an application under article 292 could easily lose its object. If, on the other hand, the coastal State has to ensure that its final decision on the merits fulfils certain conditions, one may wonder whether there are cases where a court or tribunal could insist upon prompt release on bond.
For one, the Tribunal already determined, although subtly and ‘in passing’, 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’.[88]
Although a court or tribunal under article 292 has no jurisdiction to rule on a violation of article 73(4)[89]
, it may be held that lack of notification of the arrest would as such nullify the duty of prompt release. Under these circumstances it is submitted that a court or tribunal under article 292 would refuse to recognise the exercise of a right (the right to confiscate) when it is so abused to the detriment of the flag State’s interests that it simply prevents it from making a claim under article 73(2).[90]
Release of the vessel on bond would only be prevented (and with it the jurisdiction of a court or tribunal under article 292), if the vessel itself has been destroyed pursuant to the domestic judgment: the question of release from detention would have become truly moot as there is no object that can be released anymore.[91]
Apart from article 292 proceedings, a claim for breach of article 73 could be made by the flag State pursuant to the compulsory scheme of disputes settlement under the Convention bearing in mind, however, the limitations and exceptions under section 3 of Part XV.
Other situations may be more problematic. It may be enquired whether a court or tribunal under article 292 may reject a final domestic judgment which was rendered in compliance with article 73(4) but before an application under article 292 was made.[92]
The answer to this question would help determine whether there is:
… an option of rapid confiscation that renders effectively meaningless the obligation to release the ship promptly under the Convention. 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 on bond?[93]
To the extent that, failing agreement, jurisdiction under article 292 is only established after a 10-day period, it may be possible to envisage such legal systems as permit a rapid final judgment on the merits. Such decisions, albeit preventing the possibility of prompt release, may not be disqualified ipso facto: release on bond ensures that both vessels and crews are not detained at length in foreign ports pending a final domestic outcome; if the latter is reached quickly, prompt release is no longer necessary.
However, it is now established that domestic proceedings on prompt release must exhibit due process and respect for fundamental human rights. If, as has been noted, the reasonableness of the bond may encompass the nature of domestic proceedings that led to lack of fixing of a bond, one can advance that such proceedings may also cover a final judgment on the merits. This way of considering the problem makes it clear that the judgment on the merits is not considered in itself but for its impact on the duty of prompt release: in the light of the essential balance of interests which characterises article 73 it appears justified to allow a court or tribunal under article 292 to take all relevant elements into account when it establishes its jurisdiction under article 292(1). 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. Therefore, a court or tribunal under article 292 would not only be justified in establishing its jurisdiction over the issue and examining the effects of the final judgment.[94]
Even more, non-recognition of the effects of such judgment would enable a court or tribunal under article 292 to order prompt release on bond when the judgment was rendered in violation of the duty of the coastal State to provide the interests represented in the vessel with a procedure that respects due process and fundamental human rights.[95]
The question then becomes one of the standards to apply. It is submitted that the answer lies in the balance that article 73 establishes between the interests of the flag State and the coastal State. On the one hand, the existence of a final judgment in itself prima facie terminates the duty of prompt release. In international law generally the good faith of States is presumed, as is their compliance with their international obligations.[96] The prompt release procedure is quick and any analysis of the fairness of domestic proceedings will necessarily be less than fully substantiated. Therefore, lack of ambiguity seems to be an important predicate in that field. On the other hand, it should be borne in mind that the non-recognition of a final judgment should be an exceptional measure which prevents a coastal State from circumventing its duty to provide due process in proceedings on bond. As such, it may not be enough to request that the coastal State comply with its duty to inform the flag State under article 73(4) and to argue that the flag State is estopped from insisting on prompt release under article 292 once a final judgment is rendered. In addition, to request prompt release as a provisional measure under article 290 of the Convention when a claim for violation of article 73 is made pursuant to Part XV may not be a genuine alternative in the light of the optional exceptions in article 298.[97]
The bottom line is that the right to prompt release on bond should be given a chance to be effectively claimed.[98]
Taking these considerations into account, it is suggested that non-recognition of a final judgment for the purpose of article 292 should only be allowed when the coastal State has manifestly and gravely violated its duty to provide for a due process that respects fundamental human rights. The content of these and the limits of what ‘due process’ includes will be left to the determination of the court or tribunal itself.[99]
However, various elements may be noted. In the Juno Trader case the Tribunal mentioned that the decision of the IMCC was being challenged in the courts of Guinea-Bissau.[100]
This may suggest that a final judgment rendered by a mere administrative body does not afford such sufficient legal protection as only a court of law could.[101]
In particular, the Convention itself dictates in article 230(3) that recognised rights of the accused be observed.[102] Although this provision arises in the context of domestic proceedings applicable to pollution of the marine environment, it is submitted that ‘recognised rights of the accused’ are a fundamental element of due process that applies to fisheries offences as well. In that regard, it is worth noting that these rights do not only guarantee non discriminatory treatment but incorporate ‘by reference all international human rights obligations binding on the forum State by virtue of treaty or customary international law’.[103]
It is thus suggested that the impact of a final judgment upon the jurisdiction of a court or tribunal under article 292 to order prompt release be evaluated by taking into account: the existence of a judgment that is final under the domestic legal order; the material possibility to release the vessel (material impossibility is created by the destruction of the vessel); the opportunity afforded to the flag State to request prompt release domestically or under article 292 (bearing in mind the absence of a requirement of lis pendens); and the existence, in the final judgment, of a serious violation of one or several requirements of due process as they reflect fundamental human rights. Evidence of serious violation may be found in gross abuse of rights, fraud, grave and manifest breach of internationally recognised procedural and substantive rules, or arbitrariness.[104]
In the light of the preceding analysis it is proposed to articulate the relations between domestic judgments on the merits and the duty of prompt release on bond.
• When no domestic judgment on the merits is rendered article 292 is fully applicable.
• When a non-final domestic judgment on the merits is rendered, vessels and crews are deemed in detention and article 292 is fully applicable.
• When the flag State is not notified of the arrest and a final domestic judgment on the merits is delivered, an application under article 292 is justified as the flag State was fraudulently deprived of the opportunity to request prompt release.
• When the flag State is duly notified but the coastal State renders a rapid final judgment on the merits, an application under article 292 may be justified if the final judgment is reached by gravely and manifestly breaching the fundamental duty of fairness and due process.
• When the flag State is duly notified, is afforded the possibility to ask for prompt release but does not exercise due diligence, a final domestic judgment on the merits extinguishes the right of the flag State to request prompt release.
• When the flag State is duty notified and prompt release is requested domestically, but a final domestic judgment on the merits is delivered in the meantime, it appears that the duty to promptly release on bond is terminated if the final judgment complies with the requirements of due process. If, however, the final judgment is rendered while international proceedings are pending under article 292, it appears that these proceedings should continue to prevent abuse of right and to ensure the equality of the parties before an international tribunal.
• Apart from proceedings under article 292 (in particular if a court or tribunal does not have jurisdiction under article 292 for the reasons advanced above), it may be possible for the flag State to allege a breach of article 73 pursuant to the mechanism of disputes settlement in Part XV; if a court or tribunal then has jurisdiction, release may be ordered as a provisional measure, possibly without bond, or as part of a condemnatory judgment.[105]
Article 73(2) of the Convention indicates that not only vessels but also their crews shall be promptly released upon the posting of a reasonable bond.[106]
Since only ‘detained’ crew members are subject to release, a court or tribunal pursuant to article 292 must be satisfied that the allegation of detention is well-founded.[107] For the Tribunal, the issue is to be resolved by giving the notion of detention a functional meaning for the purpose of prompt release proceedings, and not to follow the classifications given by the detaining State. In its very first case the Tribunal determined that it would not be ‘bound by the classification given by such State’.[108]
This is particularly relevant as proceedings under article 292 in no way constitute an appeal of a domestic judgment but an independent procedure altogether.[109]
In the Camouco case France had alleged that the Master, who was not in detention stricto sensu (imprisonment) but placed under judicial supervision, was not in detention for the purpose of article 292. The Tribunal refused this argument and noted:
It is admitted that the Master is presently under court supervision, that his passport has also been taken away from him by the French authorities, and that, consequently, he is not in a position to leave Réunion. The Tribunal considers that, in the circumstances of the case, it is appropriate to order the release of the Master.[110]
A functional meaning of detention would therefore encompass detention lato sensu or, in the words of Judge Treves, ‘all cases in which the movement of a vessel or of its persons is prevented by authority’.[111]
In his application in the Juno Trader case, the Agent for the flag State noted that the crew members, apart from one, were being detained on board under the surveillance of armed men and that their passports were taken away.[112] The situation of the crew led to some controversy before the Tribunal, as the respondent claimed that the passports of some crew members had already been returned, while other crew members had been replaced in order to maintain the crew of the ship, and that in any event the passports were returned when so requested.[113]
Later during the proceedings, Counsel for Saint Vincent announced that six passports had yet to be returned, despite a Guinea-Bissau declaration that there was no restriction to the freedom of movement of the crew members.[114] The judgment itself mentions that in a letter of 15 December 2004 the respondent informed the Tribunal that all crew members were free to leave Guinea-Bissau. The Tribunal, however, declared: ‘In this respect, the Tribunal notes that the members of the crew are still in Guinea-Bissau and subject to its jurisdiction … [T]he Tribunal declares that all members of the crew should be free to leave Guinea-Bissau without any condition’.[115]
Therefore, it appears that release from detention will be ordered whenever all the crew members are not in a legal or practical position to leave the detaining State or have not yet left the detaining State on the day of the prompt release judgment. The Tribunal, however, declined in the Volga case to consider whether article 73(2) allows the detaining State to impose conditions on crew members outside of its jurisdiction.[116]
Judge Anderson considered that ‘conditions may be temporal, financial or non-financial. No particular type of condition should be excluded a priori … The conditions as to the deposit of passports with the Australian Embassy in Spain are typical examples of bail conditions’.[117] In that case the Tribunal, however, refused to include non financial conditions in the bond determined to release the vessel.[118]
It may thus be expected that it would also refuse non financial conditions when they apply to crew members who are yet to be freed from detention. The difference in the Volga case is that bail money had already been paid, and the crew had already left the detaining State, when the Tribunal gave its judgment; therefore, the judgment only concerns release of the vessel. Nevertheless, it may be submitted that a bond set under article 292 or a bond set by the detaining State itself both fulfil the same purpose under the Convention: to guarantee the execution of a final judgment. Forfeiture of a bail deposit for non-compliance with conditions unrelated to the execution of a final judgment would thus seem to defeat the object of the bond under the Convention.
1. Principles
It is established that the reasonable bond to be deposited under article 73(2) concerns release of both the vessel and its crew. Pursuant to article 292, a court or a tribunal will not only determine a reasonable bond when it is alleged that the bond fixed by the detaining State is not reasonable, but also when a bond has not been requested by the detaining State or when the detaining State does not have internal procedures to release on bond. The duty to release on bond is a direct duty under the Convention.[119]
When the crew members concerned are not subject to judicial proceedings and not liable to any penalties the Tribunal will merely order their release. In the Juno Trader case the Master was the only crew member charged and fined on the merits. Therefore the Tribunal merely decided that ‘the crew shall be free to leave Guinea-Bissau without any condition’.[120]
Whereas the Master had already paid the fine before the case was brought to the Tribunal,[121]
the latter noted that the Regional Court of Bissau had suspended the payment of such fine and therefore considered that the fine should be viewed as part of the overall bond itself.[122]
However, it is unclear why a fine imposed on the Master was included in a bond that was expressly fixed to apply to release of the vessel alone.
The Tribunal has progressively refined the elements to take into account in the determination of a reasonable bond. Whereas it first stated that ‘the criterion of reasonableness encompasses the amount, nature and form of the bond’,[123]
it later clarified that concept by establishing a formula that was used in all subsequent prompt release cases. In the Camouco case the Tribunal declared that the relevant factors ‘include the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form’.[124]
In the Monte Confurco case, the Tribunal made it clear that this was ‘by no means a complete list of factors’.[125]
Finally, in the Volga case the Tribunal noted that it would have ‘regard to all the circumstances of the particular case’.[126]
It is important to stress that a bond set under article 292 is determined according to arguments and parties which are not identical to arguments and parties in a domestic context.[127]
The reasonable character of the bond is subject to an independent appreciation and does not necessarily correspond to the criteria adopted by the detaining State. This is so because the bond must satisfy all interests at stake and this would be particularly relevant in cases where no bond at all has been requested or fixed.[128]
The Tribunal made it clear that the laws of the detaining State and its courts decisions are only relevant facts in the determination of a reasonable bond and that it is not precluded from examining the facts and circumstances of the case to the extent necessary for a proper appreciation of the reasonableness of the bond.[129]
There is therefore no presumption that the bond fixed domestically should only be reduced on ‘very strong grounds’.[130]
The domestic judge herself is bound to determine a bond which must be reasonable under the Convention. This reasonable character circumscribes her margin of appreciation, however significant it may be. The Tribunal is therefore justified in ensuring that the coastal State, when fixing the bond, adheres to the requirements of article 73(2) by fixing a security which is not ‘excessive and unrelated to the gravity of the offences’.[131]
The underlying issue in article 292 proceedings is that a court or tribunal is entitled to examine and appreciate factual and legal determinations of the coastal State but this is limited not only by the expeditious nature of prompt release proceedings but also by the jurisdictional constraints excluding the merits of the case.[132]
On the other hand, the limit in article 292(3) is that the court or tribunal
‘shall not prejudice’ the merits. Surely,
article 292 cannot be used
to decide the merits. However, article 292 was never intended to
prohibit a court or tribunal from making determinations bearing
on the merits of the case when these are appropriate for the autonomous
determination
of a reasonable bond. In turn, the domestic court will not be
bound by the determinations made by the Tribunal even if in practice
this may
mean that the bond fixed under article 292 may be the only way to enforce the
judgment on the merits.
In the Monte Confurco case the Tribunal stated: ‘The Tribunal does not, however, consider the assumption of the court of first instance at Saint-Paul as being entirely consistent with the information before this Tribunal’.[133]
For Judge Mensah, this statement came ‘perilously close to an attempt by the Tribunal to enter into the merits’.[134] In that respect, it appears that a distinction must be drawn between the establishment of jurisdiction under article 292, lack of jurisdiction to decide on the merits of the case, and the ability to make such findings as necessary to determine a reasonable bond. The first point dictates that detention must be the consequence of the exercise by the coastal State of its sovereign rights under article 73(1). This must be well-founded and not merely plausible.[135]
It is therefore the task of the applicant, or of a court or tribunal proprio motu, to determine that there is a ‘genuine connection between the detention of the vessel and its crew and the laws and regulations of the detaining State relating to article 73’.[136] In the Juno Trader case the Tribunal noted that the vessel was detained for alleged infractions of fisheries laws applicable in the EEZ and that this was not disputed by the respondent.[137]
The second point places a particular emphasis on the fact that there is no jurisdiction under article 292 to decide whether the conditions of arrest were lawful. Therefore, the Tribunal stated that ‘it cannot take into account the circumstances of the seizure of the Juno Trader in assessing the reasonableness of the bond’.[138]
The third point, however, relates to the independent power of appreciation of a court or tribunal under article 292. Such power of appreciation will be exercised whenever it is relevant to the weighing of one or several components of the bond and is made independently of any similar power held by the domestic judge. Respect for domestic proceedings is not incompatible with their examination for the purpose of the international case. [139]
2. Application
As it had done in previous cases, the Tribunal in the Juno Trader case successively considered the various elements of a reasonable bond as identified in the Camouco case.[140]
Turning first to the gravity of the offence, the Tribunal took note of the findings of the IMCC and of Guinea-Bissau’s concerns about illegal, unregulated and unreported fishing in its EEZ. In previous cases, the Tribunal acknowledged the problems raised generally by illegal fishing.[141]
However, it also made clear that the measure of the gravity of the alleged offences are the penalties imposable in the particular case before it, not the general background of illegal fishing.[142]
In the Juno Trader case, the Tribunal emphasised that it may take into account ‘the circumstances of the case and the need to avoid disproportion between the gravity of the alleged offences and the amount of the bond’.[143]
This may suggest that a grave offence that is alleged to have been committed but that, according to the evidence before the Tribunal, is unlikely to have been committed, would bear upon the determination of a reasonable bond.
With regard to imposed or imposable penalties, the Tribunal simply took account of the fine imposed on the merits and the confiscation of the fish as decided by the IMCC. Therefore, there was no further imposable penalty.[144]
In the Camouco case the Tribunal merely noted the range of penalties imposable upon the Master and also noted that no charges had been made against the owner.[145]
In the Volga case the Tribunal noted that the three officers were subject to a maximum imposable fine of AU$1,100,000 but considered that a bond in that respect would serve no practical purpose, as they had already paid the bail money.[146]
In the Monte Confurco case, however, the Tribunal did more than take note of the penalties imposable on the Master: since these depended in part on the quantity of fish allegedly unlawfully caught and since the Tribunal concluded that not all of the catch could have been caught in the French EEZ, it directly concluded that the bond fixed by the French court was not reasonable.[147]
Turning to the value of the vessel, the Tribunal noted the divergence of views between the parties[148]
whereas it had accorded greater credibility to the estimations of the applicant in previous cases.[149] The cargo, however, poses a particular problem. It is established that the value of the cargo is taken into account to determine a reasonable bond. But from the case law of the Tribunal one can conclude that the cargo itself is not necessarily subject to release and, therefore, is not always part of the vessel for the purpose of release. The primary object of the duty to release on bond is the vessel; all accessories of the vessel such as catch, gear, equipments, documents and gasoil will be released when it is practical and convenient to do so. In turn, it can be assumed that the Tribunal itself can decide on such practicality and convenience and the reasons advanced by the detaining State are only one element to be taken into account. The cargo will not be subject to release when difficulties might be incurred in restoring it to the vessel.[150]
In particular, the cargo will not be subject to release either when it is discharged and seized or sold by the detaining State.[151] Thus, when 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. 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.[152] In the Monte Confurco case it considered it an additional security to be held by the detaining State.[153]
In the Volga case it did not take it into account.[154]
When release of the cargo is ordered, its value will be taken into account for the determination of a reasonable bond. To date, the Juno Trader case is the only instance where the Tribunal ordered release of the cargo together with the vessel and its crew. Whereas the sale of the catch had been announced, the fish was still on board the vessel and kept in a frozen state when the Tribunal delivered its judgment.[155]
The value of the cargo was admittedly taken into account but the Tribunal also noted that the frozen fish had remained unsold and, therefore, that its market value might be considerably reduced.[156]
In previous cases, the Tribunal made it clear that the bond determined by the detaining State is also a factual element to take into account to determine a reasonable bond.[157]
This element is absent in the Juno Trader case, as it was absent in the Saiga (No 1) case, since the detaining State had not fixed a bond.
Taking all these elements into account, the Tribunal concluded that the amount of the bond should be €300,000.[158]
It has sometimes been regretted that the bond fixed by the Tribunal was too low compared to the bond requested by the detaining State or the totality of penalties imposable.[159] Similarly, it has been deplored that the Tribunal did not fully disclose how it reached the bond it determined.[160] These critiques are only partly justified. Certainly, only a part of the veil surrounding the amount of the bond has so far been lifted by the Tribunal and it has refused to specify which elements was controlling in the case at hand.[161]
However, a court or tribunal under article 292 will determine a bond the overall balance of which has to be reasonable.[162]
In that respect, it enjoys a power of appreciation which cannot be limited by rigid rules: it is the end result which must be reasonable.[163] Whereas full transparency might be easier in claims for reparation,[164] a reasonable bond under article 292 may have to reflect determinations of facts and law which not only cannot be fully substantiated in the light of the urgency of the matter, but which also take account of additional elements and weighing of such elements as deemed appropriate.[165]
In that respect, the likelihood of the alleged offence might also form part of the ‘intimate conviction’ of the judges when fixing a reasonable bond. It is quite revealing that, whereas the Tribunal in the Juno Trader case had nothing to say about the probable origin of the fish found on board the vessel,[166]
it determined not only a remarkably low bond, but a bond which Judge Anderson himself was ready to consider high.[167] The reasonable character of the bond cannot only be assessed according to the difference between the bond requested by the detaining State and the bond determined by the Tribunal. It must be evaluated according to all relevant factors and if one also considers the difference between what is offered by the flag State or the shipowner and what is determined by the Tribunal, it should not be assumed that the balance is struck in favour of flag States.[168]
The Convention was described by the president of the Third UN Conference on the Law of the Sea as a ‘Constitution for the Oceans’. As such, it purports to regulate practically all uses of the oceans and to settle disputes arising therefrom.[169] If the Convention establishes a regime for oceans governance and if a regime is a set of principles, norms and decision-making procedures around which actor expectations converge,[170] the nature of such expectations determines the level of efficacy of the Convention. The alternatives here, however, are not to see the Convention as either a normative framework under general international law or a closed regime.[171] The Convention itself contains an efficacious body of rules applicable to the sea and its users, but it also refers in many instances to practices, regulations and rules that are determined outside the Convention, and allows for particular agreements between States Parties. This is particularly important in the field of disputes settlement, as it has sometimes been alleged that multiplication of tribunals leads to fragmentation of the international legal order. In the law of the sea this critique is, at least in some respects, inapposite. The Convention itself dictates that courts or tribunals under the Convention apply not only the Convention but other rules of international law not incompatible with it.[172] By often referring to other international courts, both the Tribunal and its judges progressively develop the porous nature of law of the sea disputes and their osmosis with the wider international legal order. The Juno Trader case, by crystallizing international fundamental standards of fairness and human rights, shows that specialised tribunals may aptly perform a decentralised application of the international rule of law, and not its unravelling.
[∗] Lecturer in Law, TC Beirne School of Law, University of Queensland.
[1] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 396 (entered into force 16 November 1994) (‘Convention’).
[2] Juno Trader (Saint Vincent and the Grenadines v Guinea-Bissau) (Application for Prompt Release) ITLOS Case No. 13 (‘Juno Trader’). The judgment is available online at <http://www.itlos.org/case_documents/2004/document_en_249.pdf> at 23 November 2005. Page numbers of ITLOS documents refer to pages as they appear on the website of the Tribunal.
[4] See the M/V Saiga case (No. 1) (Saint Vincent and the Grenadines v Guinea), Judgment of 4 December 1997; the Camouco case (Panama v France), Judgment of 7 February 2000; the Monte Confurco case (Seychelles v France), Judgment of 18 December 2000; the Chaisiri Reefer case (Panama v Yemen), discontinued by order of 13 July 2001; the Grand Prince case (Belize v France), Judgment of 20 April 2001; the Volga case (Russian Federation v Australia), Judgment of 23 December 2002. For the text of the relevant decisions and the verbatim records, see the Tribunal’s website at <www.itlos.org>.
[5] Shigeru Oda, ‘Dispute Settlement Prospects in the Law of the Sea’ (1995) 44 International and Comparative Law Quarterly 863, 866-7.
[6] The facts are summarized in the Tribunal’s decision, above n 2, [33]-[54] and in the application that was filed on 18 November 2004 with the Registry of the Tribunal by the managing director of a Hamburg-based company acting on behalf of the flag State and authorized to do so by the Commissioner for Maritime Affairs of Saint Vincent and the Grenadines. The application can be found at <www.itlos.org/case_documents/2004/document_en_243.pdf> at 23 November 2005 (‘Application’). According to art 292(2) of the Convention, ‘the application for release may be made only by or on behalf of the flag State of the vessel’. The possibility for the interests represented in the vessel to act on behalf of the flag State originates in draft proposals during the negotiations of the Convention to allow direct access of private parties to the Tribunal in prompt release proceedings. The respondent indicated during the hearing that the reefer was ‘owned’ by a company with registered office in the Principality of Monaco. See Verbatim Record (6 December 2004), Doc ITLOS/PV.04/03, 13 (‘Verbatim Record III’). The company referred to, Juno Management Services, is a wholly-owned subsidiary of Irvin and Johnson Ltd. Since the vessel is stated to be owned by Juno Reefer Ltd, its beneficial owner is, arguably, the Monaco-based subsidiary. Indeed, the director of that company appeared before the Tribunal as Adviser for the flag State. It is clear that the possibility of making an application on behalf of the flag State is not restricted to the registered owner of the vessel and may apply, for example, to the ‘operators of the detained vessels, a shipping association, or a labor union’. B H Oxman, ‘Observations on Vessel Release under the United Nations Convention on the Law of the Sea’ (1996) 11 International Journal of Marine and Coastal Law 201, 212.
[7] See Juno Trader, above n 2, [37]-[39].The events leading to the arrest of the vessel led to some controversy. During the hearing, Agent for the respondent emphasized that the Tribunal could not determine whether the arrest of the vessel was legitimate. Verbatim Record III, 8. The Tribunal rightly did not address these issues since prompt release proceedings ‘shall deal only with the question of release’. Convention, art 292(3). In any event, the submissions presented on behalf of St Vincent only alleged a violation of art 73(2) of the Convention which establishes the duty to promptly release vessels and crews arrested by the coastal State in the exercise of its sovereign rights over the living resources of its EEZ. Judge Rao indicated that the parties are seen devoting more time to the merits of their cases rather than to the determination of a reasonable bond. Separate Opinion, Rao, J [21].
[8] See Verbatim Record III, 34.
[9] See Verbatim Record (7 December 2004), Doc ITLOS/PV.04/05, 13 (‘Verbatim Record V’). It was stated by Counsel for St Vincent that the passport of the Master was only returned on 2 December so that he could testify before the Tribunal. See Verbatim Record (7 December 2004), Doc ITLOS/PV.04/04, 26 (‘Verbatim Record IV’).
[10] Juno Trader, above n 2, [42]. To reach this conclusion, the Committee based itself on a report of the Centre for Applied Fisheries Research which inspected the cargo of the reefer on 5 and 8 October. Ibid [41]. The Agent for the flag State contested the soundness of this finding both on the ground that the cargo was clearly marked and identifiable as transshipped cargo and on the ground that similarity is not identity. See application, [49] et seq and [65], and Verbatim Record (6 December 2004), Doc ITLOS/PV.04/02, 11 et seq (hereinafter Verbatim Record II).
[11] Juno Trader, above n 2, [42]-[43]. The decision of the IMCC was notified to the shipowner on 20 October. The fines were calculated on the basis of arts 56 and 58 of Decree-Law No. 6-A/2000 of 22 August 2000 concerning Fisheries Resources and Fishing Rights in the Maritime Waters of Guinea-Bissau. Ibid [44]-[45]. According to art 3(3) of the Decree-Law, ‘related fishing operations’ is understood to be: (a) the transshipment of fish or fish product in the maritime waters of Guinea-Bissau; (b) the transport of fish or other aquatic organisms caught in the maritime waters of Guinea-Bissau until the first unloading; (c) logistic support activities for fishing vessels at sea; (d) the collecting of fish from artisanal fishermen. See application, [39]-[40]. The Co-Agent for Guinea-Bissau explained that the authorities were faced with a vessel which was found transporting fish that are found in Guinea-Bissau waters, that the vessel had no permit to transship, or any document proving that the fish was caught in another country, and had not declared its entrance into national waters. Verbatim Record III, 30. He also mentioned that the Master of the reefer refused to comply with the instructions of the officials, refused to hand over the vessel’s documents, and to go to Bissau when so ordered. Ibid 27.
[12] The application states that the proceeds of the sale would have approximated €500,000. Application, [28].
[13] See Juno Trader, above n 2, [47]-[49].
[14] Verbatim Record III, 30-31. It was also said that, until the authorities of Guinea-Bissau received a letter informing them that from 17 November onwards the legal representative of the reefer was Mr. Tavares, they ‘had no one to contact … and were continuously receiving documents from different companies … claiming to be the representatives of Juno Trader in Bissau’. Ibid 21-22. Counsel for the flag State indicated that the quality of Mr Tavares as representative of the owner had never been contested until the hearings before the Tribunal. Verbatim Record IV, 16.
[15] See Juno Trader, above n 2, [50]-[51]. There was, allegedly, no official reaction to the posting of the P&I security. Verbatim Record II, 29. Before the Tribunal, Counsel for the respondent indicated that ‘Guinea-Bissau is not satisfied with the kind of bond allegedly offered by the applicant … In particular, it is just a letter from an insurance company, which is not an entity registered with the regulatory financial authority of the United Kingdom, the FSA’. Verbatim Record IV, 13.
[16] Juno Trader, above n 2, [52].
[17] See ibid [53]. Confiscation was effected by art 60 of Decree-Law No. 6-A/2000 (see above n 11) which states: ‘1. Fines for infractions of the present [Decree-Law] shall be paid within 15 days from the date upon which no further appeal can be made against the sentence or from the date of its application by the Interministerial Fisheries Commission, as the case may be. 2. The period referred to in the preceding paragraph may be extended for the same period at the request of the shipowner or his representative. 3. In the event of non-payment of all or part of the fine … any assets which may have been apprehended shall revert to the State’.
[18] Application [27].
[19] Verbatim Record II, 31.
[20] Rules, art 112(1). Provisional measures are of equal importance. Therefore, the Tribunal must ensure that both proceedings are dealt with without delay. Ibid.
[21] Ibid art 112(3) and (4).
[22] Ibid art 111(1).
[23] Juno Trader, above n 2, [20].
[24] Rules, art 111(4).
[25] A certified copy of the application must be transmitted ‘forthwith’ by the Registrar to the detaining State. Ibid.
[26] Verbatim Record IV, 14.
[27] Juno Trader case (Saint Vincent and the Grenadines v Guinea-Bissau), Order of 1 December 2004, available at < http://www.itlos.org/case_documents/2004/document_en_242.pdf> at 23 November 2005.
[28] Juno Trader, above n 2, [15]. Judge Rao indicated that no valid justification was given for failure to comply with the President’s Order and that, whereas the Tribunal would have been entitled to turn down the respondent’s request, it stretched the applicable provisions on time-limits by using the concept of postponement of the continuation of the hearing. Separate Opinion Rao, J [9], [11]. See Rules, art 69(1).
[29] See, eg, Mavrommatis Palestine Concessions Case (Greece v United Kingdom) (Jurisdiction) [1924] PCIJ (ser A) No 2, 34, Case Concerning Certain German Interests in Polish Upper Silesia (Germany v Poland) (Jurisdiction) [1925] PCIJ (ser A) No 6, 14.
[30] See Separate Opinion, Rao, J, [18], noting the general principles of procedural law that ‘each party must enjoy equal rights for the submission of its case’ (quoting Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, vol III (1997) 1092). See also Separate Opinion, Lucky, J, [18]-[24].
[31] Convention, art 300. The Rules are adopted by the Tribunal pursuant to art 16 of Annex VI to the Convention.
[32] These guarantees are particularly important in comprehensive agreements which necessitate a high degree of coordination between domestic legal orders and the legal order created by the instrument.
[33] Judge Rao aptly noted that there are several ways whereby the principle of equal opportunities for the parties may be allowed full play, not all of which may entail amendment of the Rules. Separate Opinion, Rao, J, [19]. The Tribunal may, in the future, reject the request of the detaining State to file documents after the commencement of the hearing. See Rules, art 71.
[34] The other provisions concerned are arts 220(7) and 226(1)(b). Early controversy had opposed several authorities, now judges in the Tribunal, on the issue whether the duty of prompt release may impliedly be found elsewhere in the Convention. See D H Anderson, ‘Investigation, Detention and Release of Foreign Vessels under the UN Convention on the Law of the Sea’ (1996) 11 International Journal of Marine and Coastal Law 165, 168 and, contra, Tullio Treves, ‘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, 186. The Tribunal indicated that three provisions in the Convention expressly contain the duty of prompt release of vessels and crews: ‘article 73, paragraph 2; article 220, paragraphs 6 and 7; and, at least to a certain extent, article 226, paragraph 1(c)’. Saiga (No. 1), above n 4, [52].
[35] Art 292 is a rare exception to the system of compulsory settlement of disputes created by Part XV of the Convention, which makes arbitration the default means of compulsory disputes settlement. See Convention, arts 287(1) and 287(5). It is likely that the Tribunal itself will examine the majority of prompt release cases, as neither the constitution of an arbitral tribunal nor the resort to the International Court of Justice (which implies acceptance of its jurisdiction under art 287) appear suitable to prompt release situations. 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 (eds), La mer et son droit: Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (2003) 479, 481
[36] Rules, art 113.
[37] See above n 20 and 21 and accompanying text.
[38] See Camouco, above n 4, [50].
[39] See Juno Trader, above n 2, [57].
[40] Challenges to nationality are generally classified as issues bearing upon the admissibility of the claim in the context of diplomatic protection. However, art 292(2) establishes the jurisdiction of the Tribunal only when the application is filed by or on behalf of the flag State. Issues of nationality may, therefore, be more appropriately classified as jurisdictional questions in that instance. See Georges Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour internationale (1967) 174-177. After analysing international judicial practice, however, he notes that case law is not clear: at 177. In the Saiga, Camouco, Monte Confurco and Volga prompt release cases the Tribunal noted, while examining its jurisdiction, that the nationality of the vessels in question was not challenged. In the Saiga (No 2) case the Tribunal noted that there was no disagreement between the parties on the jurisdiction of the Tribunal. See M/V Saiga (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment of 1 July 1999, [40]. However, before deciding on the merits, the Tribunal examined various challenges to admissibility raised by Guinea. These concerned notably the nationality of the vessel and the genuine character of its link with the flag State. In the Grand Prince case the Tribunal, while examining its jurisdiction, decided to examine proprio motu the nationality of the vessel whereas it had never been raised by France. See Dissenting Opinion Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson and Jesus, JJ, [2]
[41] Juno Trader, above n 2, [58] and Verbatim Record III, 43-46. ‘My understanding is that it may be the case that when a ship is confiscated in those circumstances it is thereupon regarded as ceasing to fly any flag at all and to have become ordinary chattel until such time as the State that has confiscated it has sold the ship and it is reflagged by a new owner’: Verbatim Record III, 47.
[42] Juno Trader, above n 2, [62].
[43] Verbatim Record III, 31.
[44] Ibid 37. Since confiscation was effected by operation of the law for failure to pay the fine after the expiry of the 15-day period (see above n 17 and accompanying text) it was stated that the injunction filed with the Regional Court of Bissau ‘could no longer produce any effects at the time it was filed … given that at such time the vessel’s agent was no longer the owner of the vessel’. Ibid 40.
[45] Ibid 41.
[46] Verbatim Record IV, 6.
[47] Verbatim Record V, 22-23.
[48] Ibid 24.
[49] The Grand Prince case showed the drastic effect that a lack of consistency in the legal position of a party to the proceedings may have on its standing altogether. See Grand Prince, above n 4, [76], [93]. In that case, Judge Anderson observed that the applicant’s agent was ‘not well placed, as a non-Belizean lawyer in private practice in Spain, to explain to the Tribunal the seeming inconsistencies in the statements of different government departments and agencies in Belize’. Separate Opinion, Anderson, J, 1. See B H Oxman and V P Bantz, ‘The Grand Prince case’ (2002) 96 American Journal of International Law 219, 223 n 31.
[51] See Convention, art 300, and Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, art 31 (entered into force 27 January 1980).
[52] Oxman and Bantz, above n 35, 480. Author’s translation. See also Pauvelyn, who writes on ‘the presumption against conflict’ as a conflict-avoidance technique. Joost Pauwelyn, Conflict of Norms in Public International Law (2003) 240.
[53] Monte Confurco, above n 4, [70].
[54] See Grand Prince, above n 4, Separate Opinion, Laing, J, [10], and Oxman and Bantz, above n 35, 488.
[55] The merits, if leading to a dispute between the coastal State and the flag State, may be subject to compulsory procedures of disputes settlement but the Convention permits disputes under art 73(1) to be excluded from such procedures. See art 298(1)(b). The problem was raised clearly by France in the Grand Prince case, as it argued in its Observations that the decision of the criminal court of 23 January 2001, which ordered confiscation of the vessel, was a decision on the merits and was therefore excluded from the jurisdiction of the Tribunal under art 292(3). Such confiscation was said to be an exercise by France of its powers under art 73(1) and had rendered moot its duty under art 73(2). In addition, France noted that a dispute concerning art 73(1) may, pursuant to art 298(1)(b), be excluded from the mechanism of compulsory disputes settlement established under section 2 of Part XV. See Observations du Gouvernement Français in the Grand Prince case (on file with author). This has to be taken into account before one can conclude that the problem ‘should be solved in the framework of part XV of the Convention’. Yoshifumi Tanaka, ‘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, 258 n 82 (quoting Oxman and Bantz, above n 49, 225, and noting that the problem, however, ‘is not without interest’).
[56] Oxman and Bantz, above n 35, 492.
[57] Art 292(1) mentions ‘release from detention’ and art 292(3) mentions the question of release which is to be without prejudice to the merits. Art 73(2) mentions boarding, arrest, detention and judicial proceedings in that very order. The merits would generally be decided by judicial proceedings.
[58] See Saiga (No 1), above n 4, [71]. This is not only justified by the general principle that domestic legislation is only a factual determination for an international tribunal but also by the autonomous character of art 292 where a court or tribunal in no way acts as a domestic court of appeal. See Monte Confurco, above n 4, [72].
[59] Convention, art 73(3). Confiscation is a penalty that is largely applied for violations of fisheries regulations. See below n 81.The scheme is different for marine pollution. See Convention, art 230.
[60] See Camouco, above n 4, [76], Monte Confurco, above n 4, [95], Juno Trader, above n 4, [102].
[61] The analogy with the bail in domestic criminal proceedings is probably apposite but may not exhaust all the possible similarities with other well-known procedures in civil or criminal contexts. See, for example, the International Convention on Arrest of Ships which mentions that ‘any final decision [on the merits of the case] shall be recognised and given effect with respect to the arrested ship or to the security provided in order to obtain its release’. Emphasis added. International Convention on Arrest of Ships, opened for signature 12 March 1999, available at <http://www.unctad.org/en/docs/imo99d6.pdf> at 23 November 2005, art 7(5) (not yet in force). Its predecessor was drafted in different terms. See International Convention Relating to the Arrest of Seagoing Ships, opened for signature 10 May 1952, 439 UNTS 193, art 7(2) (entered into force 20 November 1955).
Also note that the various provisions in the Convention use the terms ‘bond’, ‘bonding’, ‘security’, and ‘financial security’. In the context of proceedings under art 292, it is established that the bond refers to a financial security only. See Volga, above n 4 [77].
[62] Oxman and Bantz, above n 35, 492. Author’s translation.
[63] Juno Trader, above n 2, [62], [67]-[68].
[64] Resort to art 292 is justified when an unreasonable bond, or no bond at all, has been fixed and it is irrelevant that domestic proceedings on these issues are still pending domestically. See Camouco, above n 4, [55]-[57]. The domestic judgment on bond, if any, will be reformed in the light of a judgment under art 292. See B H Oxman and V P Bantz, ‘The Camouco case’ (2000) 94 American Journal of International Law 713, 718 n 43 and accompanying text. It is also irrelevant that domestic proceedings on the merits are still pending (as was the case, for instance, in the Camouco and Monte Confurco cases) or that a non-final decision on the merits has been taken, as was the case in the Juno Trader case.
[65] See above n 40 and accompanying text.
[66] See Juno Trader, above n 2, [62]-[63].
[67] The Tribunal refused to determine the ‘effect of a definitive change in the ownership of a vessel upon its nationality’: [63].
[68] Saiga (No 2), above n 40, [82]-[83] and the author’s comments in B H Oxman and V P Bantz, ‘The M/V Saiga (No 2) case’ (2000) 94 American Journal of International Law 140.
[69] Convention, art 92(1), second phrase.
[70] Convention, arts 91(1) and
92(1), first phrase. In the domestic legislation of the flag States themselves,
transfer of ownership
of the ship to a non-national of the flag State does not
necessarily automatically result in loss of registration even if local
conditions
impose ownership by a national in the first place. See the study of
the Institut de Droit International at its Venice session which,
in other
respects, is remembered for having imposed national ownership as a requirement
for registration. Institut de Droit International,
‘Règles relatives
à l’usage du pavillon national pour les navires de commerce’,
in Rapport et projet
de résolution presentés au nom de la commission
par M. Asser et Lord Reay, rapporteurs (1896) 15 Annuaire de
l’Institut 54 et seq and ‘Projet de résolutions’,
ibid 72-73.
[71] See Herman Meyers, The Nationality of Ships (1967) 171-179. In a joint separate opinion in the Juno Trader case, Judges Mensah and Wolfrum considered that ‘there is no legal basis for asserting that there is an automatic change of the flag of a ship as a consequence solely of a change in its ownership … A procedure that purports to result in the loss of flag of ships with little or no legal process would result in the absence of any effective protection for ships detained in foreign ports’. Joint Separate Opinion, Mensah and Wolfrum JJ, [9], [11]. In the Grand Prince case the Tribunal came to the conclusion that the registration of the ship had expired on 29 December 2000 and that subsequent documents of the International Merchant Marine Registry of the flag State were expressly ‘intended to serve the purpose of authorizing the shipowners to make an appeal to the Tribunal’ and ‘were issued after the Application was made’. Grand Prince, above n 4, [84], [86].
[72]Judge Treves noted that the wrongful act is not the arrest of the vessel but non-compliance by the detaining State with the duty to promptly release upon the payment of a bond. See Grand Prince, above n 4, Separate Opinion Treves J, [1].
[73] Camouco above n 4, [55]-[58] and above n 64. See Convention, art 295. Art 44 of the
International Law Commission’s final report on State responsibility
indicates that
the responsibility of a State may not be invoked if the claim is
one to which the rule on exhaustion of local remedies applies. See
[2000]
Yearbook of the ILC 55. The Commentary implies that the rule applies to
diplomatic protection. Ibid 305. See also the ILC’s work
on diplomatic protection, [2003] Yearbook of the ILC 84. On the nature
of injuries suffered by individuals as a result of the violation of the flag
State’s rights, see the Saiga (No 2) case, above n 40, [97]-[98].
[74] See Monte Confurco, above n 4, [71].
[75] In the Camouco and Monte Confurco cases the Tribunal noted that the status of the flag State, both at the time of the incident and ‘now’ was not contested. See Camouco, [46] and Monte Confurco [58]. This may suggest a continuity of nationality up to the date of the judgment by the Tribunal, whereas in the Grand Prince and Juno Trader cases the Tribunal only referred to the status of the flag State when the application was made. See Grand Prince, above n 4, [93] and Juno Trader, above n 2, [64]. Wyler considers that both the rule that the individual must have the nationality of the applicant State at the time of injury and the rule that the individual must have the nationality of the applicant State at the time of the application are justified in practice, but nothing concrete supports the alleged requirement of a continuity of nationality. See Eric Wyler, Le règle dite de la continuité de la nationalité dans le contentieux international (1990) 262-263.
[76] The dissenting judges in the Grand Prince case considered that the flag State at the time of detention and at the time the application is made would usually be the same but the ‘reasoning of the Tribunal to justify this as a legal requirement … is not convincing’. These judges may have very appropriately foreseen the kind of issues involved in the Juno Trader case. See Dissenting Opinion Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson and Jesus JJ, [15].
[77] See Verbatim Record III, 49.
[78] Convention, art 292(1).
[79] See Juno Trader, above n 2, [67] and Verbatim Record III, 48-49.
[80] See Juno Trader, above n 2, [68] and above n 66 and 67 and accompanying text.
[81] The Food and Agriculture Organization published a list of legislations on coastal States’ requirements for foreign fishing. The most recent revision of the document (1996) can be found at <www.fao.org/docrep/V9982E/v9982e00.htm> at 23 November 2005. The document shows that confiscation of the vessel, gear or catch, is a penalty commonly imposed.
[82] There is no functional difference between ‘arrest’ in art 73 and ‘detention’ in art 292. One commentator who represented France before the Tribunal in prompt release cases suggests that ‘from a strictly legal point of view, a vessel should effectively not be deemed as detained until the time when it is provisionally seized by decision of the judge who upholds the seizure previously decreed by an administrative authority’. Jean-Pierre Quéneudec, ‘A propos de la procédure de prompte mainlevée devant le Tribunal international du droit de la mer’ (2002) 7 Annuaire du droit de la mer 79, 83 (quoted and translated in application, above n 6, [16]). This interpretation is not in conformity with the Tribunal’s notion of ‘detention’. Indeed, when examining its jurisdiction, the Tribunal makes sure that no agreement between the parties was reached within 10 days from the time of detention. Convention, art 292(1). For the Tribunal, ‘detention’ means arrest of the vessel and crew on the seas, not a judicial decision. See Saiga (No 1), above n 4, [41]. Mr. Quéneudec mentions this case but considers that ‘the case law of the International Tribunal for the Law of the Sea in prompt release cases has until now provided no useful indication on that point’. Quéneudec, 83. Author’s translation.
[83] And probably the owners of the vessel. See art 292(3).
[84] Grand Prince, above n 4, Separate Opinion, Anderson J, 3.
[85] Oxman and Bantz, above n 49, 223-224. The Tribunal said that ‘the object of art 292 of the Convention is to reconcile the interest of the flag State to have its vessels and its crews released promptly with the interest of the detaining State to secure appearance in its court of the Master and the payment of penalties’. Monte Confurco, above n 4, [71]. One parameter to be taken into account to determine the bond is the value of the vessel and imposable penalties. There would therefore be no great risk of financial loss for a coastal State which cleverly determines a reasonable bond. The bond will be cashed if a final decision to, say, confiscate the vessel and sell it at public auction cannot be enforced. In the Grand Prince case the French criminal court of Saint-Denis, Réunion, sentenced the master to a fine of FF200,000 and ordered the confiscation of the vessel and its catch with immediate execution notwithstanding appeal. It did so, however, only eleven days after the civil court had set a bond of FF11,400,000. Certainly, confiscation of the vessel and, possibly, its destruction, give a psychological satisfaction to the coastal State (a relative satisfaction, though, depending on how difficult it is for the shipowner to replace a confiscated vessel) but it may have been more economically rational in that case for the French authorities to set a substantial bond and wait to see whether the owner would pay or challenge it. On the other hand, it will not be rational for the owner to pay a bond that exceeds the value of her interests in the vessel; she may either refuse to pay the bond and wait for the outcome on the merits or challenge the bond under art 292. This happened in the Camouco case.
[86] Juno Trader, above n 2, [77].
[87] Saiga (No 2), above n 40, [155]. The Tribunal made this comment while determining that Guinea had used excessive force in stopping and arresting the vessel.
[88] Camouco, above n 4, [59]. The Tribunal repeated this in the Juno Trader case, noting that no notification to St Vincent had been made. Judgment, above n 2, [76].
[89] See Camouco, above n 4, [59].
[90] See Convention, art 300 (quoted above n 31). In the Juno Trader case, Judge Treves considered that lack of compliance with art 73(4) is ‘relevant as aspects of non-compliance with paragraph 2, in the light of the common human rights and due process dimension’. Separate Opinion Treves J, [4].
[91] Counsel for Guinea-Bissau stated that the Tribunal ‘has no power to annul a transfer of property … If a national court orders the confiscation of detained ship as a penalty for the violation of its laws, the judgment can simply be executed. For the Tribunal to interfere at this stage [would], in effect, amount to entertaining an appeal against the decision of the national court’. Verbatim Record III, 45, 50. This view, however, misunderstands the nature of art 292 proceedings. The Tribunal made it clear that art 292 ‘provides for an independent remedy and not an appeal against a decision of a national court. No limitation should be read into art 292 that would have the effect of defeating its very object and purpose’. Camouco, above n 4, [58].
[92] When the final domestic judgment of confiscation is rendered while prompt release proceedings are taking place under art 292, the prevention of abuse of rights would dictate that it not be recognised. In the Grand Prince case, a non-final domestic judgment on confiscation had prevented the shipowner from requesting prompt release on bond under domestic law. He then decided to turn to the Tribunal under art 292. The Tribunal, however, found that it lacked jurisdiction. See above n 71. In the Camouco case, both the domestic proceedings on bond and on the merits were pending when an application to the Tribunal was made.
[93] Oxman and Bantz, above n 49, 223.
[94] As opposed to summarily removing the case from the docket on the grounds that there is a final judgment. See the French Observations in the Grand Prince case, above n 55, and Oxman and Bantz, above n 35, 496-497.
[95] By and large, the Convention is based on the principle that States’ rights and duties are independent of each other and that a violation of the latter does not usually affect enjoyment of the former. However, the Convention itself and certain related regimes recognise exceptions to this principle. See, eg, Convention, art 228(1) and Oxman and Bantz, above n 68, 149. Non-recognition, under certain circumstances, of a final confiscation judgment, as opposed to annulment of such judgment or non-recognition of the right to confiscate, gives full effect to the duty to release on bond without prejudicing the merits under art 292(3). See also above n 91.
[96] Lake Lanoux (Spain/France) (1957) 24 ILR 101, 126 (arbitral award of 16 November 1957). In the Grand Prince case, the Agent for Belize claimed: ‘France is trying to introduce a new concept in international law; a new concept in the Convention. I shall call it prompt confiscation and prompt imprisonment. That concept would prevail over prompt release. If the Tribunal accepted such a position, Article 73.2 would become in practice “dead letters”. It would be an open door for all kinds of subterfuge and strategies to evade compliance with the Convention’. Verbatim Record (5 April 2001), Doc ITLOS/PV/01/2, 20. Judge Cot in that case rightly pointed that the ‘accusation of fraud against the Convention is a serious one, which should not be taken lightly’. Declaration Cot J ad hoc, [5].
[98] In such a mature and integrated legal system as the European Union, the European Court of Justice has, over the years, developed a sophisticated case law guaranteeing that domestic procedures do not jeopardize the effective implementation of European Union law. See in particular The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others (C-213/89) [1990] ECR I-2433. The analogy with the Convention is not fully relevant, as States are not in the same position under the treaties constituting the European legal order which the European Court of Justice itself qualified as ‘a new legal order’. See NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration (26/62) [1963] EUECJ R-26/62; [1963] ECR 1, 12. Even then, it will be recalled that a State which contracted international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of these obligations. Exchange of Greek and Turkish Populations (Advisory Opinion) [1925] PCIJ (ser B) No 10, 20. See also Vienna Convention on the Law of Treaties, above n 51, art 27.
[99] A court or tribunal will apply rules of international law not incompatible with the Convention. See Convention, art 293 and above n 87.
[100] Juno Trader, above n 2, [62].
[101] See also Joint Separate Opinion, Mensah and Wolfrum JJ, [12]. The opportunity to have a court of law examine the issue might be particularly relevant if the confiscation is effected by mere operation of a statute, as was originally explained to the Tribunal. See above n 42 et seq and accompanying text. This certainly bears on the issue of one’s right not to be illegitimately deprived of one’s property. Judge Ndiaye, however, considered that the injunction of the Court of Bissau ‘which hardly carries the authority of a judicial decision and which was made while awaiting a final decision in the case, is voided by application of the legislative provisions in force … In the circumstances, the final decision in this case was actually that of the Interministerial Commission that led to confiscation by law’. Separate Opinion, Ndiaye J, [22], [24].
[102] Ironically, Counsel for Guinea-Bissau indicated that the court in Bissau decided to suspend the decision of the IMCC without hearing the Guinea-Bissau authorities in view of the urgency of the case. It decided solely on what was stated by the applicant. Verbatim Record III, 39.
[103] B H Oxman, ‘Human Rights and the United Nations Convention on the Law of the Sea’ (1997) 36 Columbia Journal of Transnational Law 399, 426. Judge Treves mentioned the ‘common human rights and due process dimension’. He wrote that ‘confiscation obtained in violation of due process would seem … abusive so that it cannot preclude an order for release’. Violation of due process may concern a quick judgment that did not afford a possibility to consider arguments in favour of the detained vessel and crew. Separate Opinion Treves, J, [4]-[6]. Judges Mensah and Wolfrum noted that a vessel continues to be a detained ship ‘until after the completion of national procedures that meet the standard of due process as developed in international law’. Joint Separate Opinion Mensah and Wolfrum, JJ [12]. Otherwise ‘when these national proceedings have been completed, the prompt-release procedure does not serve any further purpose’: [12]. The rights concerned are to be evaluated in the light of contemporary international law, which arguably embodies more ‘rigorous standards’. See 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.
[104] The International Court of Justice defined arbitrariness as a ‘wilful disregard of due process of law, an act which shocks, or at least surprises, judicial propriety’. Case Concerning Elettronica Sicula SPA (ELSI) (United States of America v Italy) (Merits) [1989] ICJ Rep 15, 76. It is worth nothing that the 1999 Arrest of Ships Convention gives effect to a domestic final decision of a competent court or arbitral tribunal in respect of an arrested ship ‘on condition that: a. the defendant has been given reasonable notice of such proceedings and a reasonable opportunity to present the case for the defence; and b. such recognition is not against public policy (ordre public)’. International Convention on Arrest of Ships, above n 61, art 7(5).
[105] If a declaration under art 298 was made by the coastal State, a court or tribunal does not have jurisdiction under section 2 of Part XV to rule on a breach of art 73(1). Therefore, it would not examine an alleged breach of art 73(2) either if such breach stems from a domestic decision pursuant to art 73(1).
[106] Art 292 finds its origin in an early US proposal of 1974. See UN Doc A/CONF.62./C.2/L.47, art 21, reproduced in UNCLOS III, Official Records, vol III, 224 (1974). This was ‘in significant measure a response to concerns about the treatment of foreign ships and crew members by various States, including detention policies, trial practices and prison conditions in different parts of the world’. Oxman, above n 103, 422. For vessels, both in the context of fisheries and in the context of pollution (see art 226), the rationale may be that ‘to allow a State to detain a tanker for an extensive period of time would be extremely costly and would result in additional increases in prices of petroleum products, and that a fisherman would suffer great losses if his boat were detained for a large portion of a fishing season’. S Rosenne and L B Sohn (eds), United Nations Convention on the Law of the Sea: A Commentary, vol V (1989) 68.
An early revised draft on the settlement of disputes (what is now Part XV of the Convention) mentions that an application for prompt release may concern the vessel, its crew or passengers. See UN Doc A/CONF.62/WP.9/Rev.1, art 15, reproduced in UNCLOS III, Official Records, vol V, 190 (1976). The drafts of what is now art 73, however, mention vessels and crews only. The Informal Composite Negotiating Text contains an art 292 that is almost identical to what is now art 292 and the reference to passengers disappeared. See UN Doc A/CONF.62/WP.10, art 292, reproduced in UNCLOS III, Official Records, vol VIII, 47 (1977). Where the duty of prompt release applies, that is, for alleged fisheries or pollution offences, individuals should not be subject to domestic proceedings solely on account of their passengers status.
[107] Rules, art 113.
[108] Saiga (No 1), above n 4, [71].
[109] See Camouco, above n 4, [58], Monte Confurco, above n 4, [72].
[110] Camouco, above n 4, [71]. In French law, judicial supervision is different from pre-trial detention. A person under judicial examination may be placed under judicial supervision by the investigating magistrate and may be required to surrender a passport or post a security. See Code of Criminal Procedure, art 138. The rest of the crew had left Réunion, except for four crew members who remained on board to see to the maintenance of the vessel and who were not subject to judicial proceedings. The same scheme was repeated in the Monte Confurco case. In the Saiga case, two injured crew members were allowed to leave Conakry. Guinea had not notified the detention, had refused to discuss the question of the bond and had not requested any bond for the release of the vessel and its crew. The Tribunal ordered the release of the vessel and its crew upon a reasonable bond that it fixed.
[111] T Treves, above n 34, 182.
[112] See application, [9].
[113] Verbatim Record III, 21, 34. See above n 8 and 9 and accompanying text.
[114] Verbatim Record V, 12-13.
[115] Judgment, above n 2, [79]. See also [104(4)].
[116] The three crew members originally detained in Fremantle, Western Australia, and charged with offences (the Master passed away one month after the arrest and the other crew members were permitted to leave) were admitted to bail on condition that they each deposit AU$75,000 cash, surrender their passports and not leave Perth. In its application, Russia requested release of the vessel and crew upon payment of a different bond in the form of a bank undertaking. Upon posting of the bail money by the shipowner, the crew members obtained a variation of the bond conditions which allowed them to return to Spain. On appeal by the Commonwealth Director of Public Prosecutions, the Supreme Court of Western Australia ordered a substantial increase of the bail. Appeal against this decision was lodged by the crew members and, while the Tribunal was deliberating, it was informed that the Full Court of the Supreme Court of Western Australia had upheld the appeal and decreased the bail. The Court also ordered that the crew members, upon return to Spain, surrender their passports and seaman’s papers to the Australian Embassy in Madrid and report monthly to the same Embassy. The bail deposit would otherwise be forfeited. The Agent of Australia informed the Tribunal on 21 December 2002 that the three crew members had left Perth for Madrid after signing a bail undertaking. See Volga, above n 2, [41]-[49]. The Agent of Russia, however, indicated to the Tribunal that the ‘decision of the Court attaches conditions … not envisaged by art 73(2) … and thus in our view is not permissible’: at [48]. In its judgment the Tribunal ‘did not consider it necessary, in the present circumstances, to deal with the issues’: at [74]. On the other hand, since the requested bail money had been paid, the Tribunal considered that setting a bond for the crew members, as was requested by Australia to secure payment of potential fines imposed in the criminal proceedings, would serve no purpose: at [14].
[117] Dissenting Opinion Anderson J, [13]-[14] and Dissenting Opinion Shearer J ad hoc, [17]. But see Separate Opinion Cot J, [26].
[118] The Tribunal held that a good behaviour bond to prevent future violations, such as agreeing to carry an operational VMS, was not a bond or security within the meaning of art 73 which only allows for a security of a financial nature. Volga, above n 2, [77], [80].
[119] See above n 98 and Saiga (No 1), above n 4, [77]. In French law, the bond only concerns the vessel under art 3 of Law No 83-582 of 5 July 1983. JO of 6 July 1983, 2065. The guarantee that the person under judicial examination may be required to provide is an element of judicial supervision, not a condition for release from judicial supervision. See Code of Criminal Procedure, art 138(11) and above n 110. In both the Camouco and Monte Confurco cases, however, the Tribunal fixed a bond for the release of the vessel and its Master.
[120] Judgment, above n 2, [104(4)]. In the Saiga (No 1) case the Tribunal did not specify how it reached a bond of US$400,000 plus the gasoil already discharged to be held as additional security. The bond, however, applied to release of both the vessel and its crew. Saiga (No 1), above n 4, [82], [84], [86]. The Tribunal may have taken into account the likelihood of formal charges against the Master but only a ‘Procès Verbal’ had been drawn at the date of the judgment. In fact, whereas the judgment was rendered on 4 December 1997, Guinea refused to release the vessel and its crew and the Master was subjected to criminal charges on 10 December.
[121] See above n 11, 15, and accompanying text.
[122] Judgment, above n 2, [99], [104(5)]. See below n 158.
[123] Saiga (No 1), above n 4, [82].
[124] Camouco, above n 4, [67].
[125] Monte Confurco, above n 4, [76].
[127] See also Case Concerning Elettronica Sicula, above n 104, 46.
[128] In the Juno Trader case, no bond was requested by the respondent since a fine on the merits had already been imposed. The Agent for Guinea-Bissau explained that other vessels had been arrested in similar circumstances and were released upon payment of either the respective fine or a bond considered sufficient and adequate to cover potential liabilities. Verbatim Record III, 16. However, it is clear that the possibility to post a bond had not been offered to the owners of the Juno Trader and that there was no official reaction to the spontaneous offer of a bond of €50,000. See above n 15. It was explained that the ‘agent of the Juno trader, unlike the agents of other confiscated or arrested vessels, did not show any real interest in negotiating with the fisheries authorities’. Verbatim Record III, 21.
[129] Monte Confurco, above n 4, [72], [74].
[130] See in the Camouco case, Dissenting Opinion Anderson J, 2, 7, 8, 10, and Dissenting Opinion Wolfrum J, 4, who considers the discretionary powers of the coastal State. A discretionary power under art 73(1), however, is far from an unlimited power. See B H Oxman and V P Bantz, above n 64, 718 n 40 and 720 n 49.
[131] Camouco, above n 4, [73]. See also in the Volga case, Separate Opinion Cot J, 3 et seq.
[132] See Monte Confurco above n 4, [74]. ‘Prohibiting the Tribunal from looking at the facts would deprive it of the possibility of making a proper assessment, while obliging it to take into consideration all the facts would be inconsistent with the expediency of the procedure.’ E Franckx, ‘Reasonable Bond in the Practice of the International Tribunal for the Law of the Sea’ (2002) 32 California Western International Law Journal 303, 331.
[133] Monte Confurco, above n 4, [88]. The French court had, as a point of departure, based its order requiring a bond of FF56,400,000 on the presumption that all the catch found on board the vessel, which was found in the EEZ of the Kerguelen Islands without prior notification of entry, was caught in the French EEZ. See Oxman and Bantz, above n 64, 715-716.
[134] Monte Confurco, Declaration Mensah J, 1. He questioned the ability of the Tribunal to make factual determinations when it is not in a better position than the domestic court to do so and suggested that an examination of the facts be only ‘strictly necessary’ for an appreciation of the reasonableness of the bond. Ibid 4. However, he did not elaborate any further.
[135] See Rules, art 113. In the Saiga (No 1) case, the Tribunal considered that a Guinean legislation, which was considered by Guinea itself to be a customs legislation applicable in the contiguous zone, could plausibly be regarded as a regulation on bunkering of fishing vessels and therefore, as a regulation on activities within the scope of the exercise by the coastal State of its sovereign rights in the EEZ. Since arrest had taken place after hot pursuit started when the vessel allegedly committed the infractions in the Guinean EEZ, the Tribunal considered that it should prefer a classification that avoids a violation of international law. Saiga (No 1), above n 4, [59], [60], [63], [70], [72]. This standard of appreciation prompted the dissenting opinions of nine judges.
[136] Ibid, Dissenting Opinion Wolfrum, VP, and Yamamoto J, [4].
[137] Judgment, above n 2, [69]. In the Volga case, the Tribunal noted that the respondent conceded that the application was admissible under art 292. Volga, above n 4, [58]. Australia indicated that at the time of the first communication with the vessel it was outside the Australian EEZ. Ibid [33]. This would render any exercise of hot pursuit unlawful under art 111 of the Convention. However, this does not affect jurisdiction under art 292, as the applicability of fisheries law of the coastal State is in essence different from their application in the case.
[138] Juno Trader, above n 2, [95]. See also Volga, above n 4, [83]. Judge Lucky in the Juno Trader case, however, considered that before the gravity of the offence can be determined, the Tribunal must decide whether an offence has in fact been committed. Separate Opinion, Lucky J, [31]. The applicant maintained that the Master of the Juno Trader first thought that the reefer was under a pirate attack when armed and camouflaged men in an approaching zodiac started shooting in the direction of the vessel. Distress signals were sent and responded to by a Spanish hospital ship which took on board a crew member of the reefer who had been injured during the shooting. Juno Trader, above n 2, [37]. The ‘pirates’ later turned out to be fisheries agents of Guinea-Bissau but the application states that a ‘group of persons wearing non-matching clothing, waving guns and shouting … on board a Zodiac whose markings are not really visible … can evoke to an experienced sailor … a danger rather than police at sea’. Application, [93], [100]. On the right of hot pursuit, see Convention, art 111. In light of the freedom of navigation in the EEZ, the applicant also questioned the respondent’s claim that the vessel was anchored in that zone, and its finding of illegal fishing activities since the Juno Trader itself was not a fishing vessel and the Flipper was fishing under a Guinea-Bissau fishing licence. See application, [43]-[51], [73].
[139] See, eg, Interhandel Case (Switzerland v United States) (Provisional Measures) [1957] ICJ Rep 105, 112. In the light of the swift nature of the proceedings, the Tribunal is limited on the extent to which it ‘could take cognizance of the facts in dispute and seek evidence in support of the allegations made by the parties’. Monte Confurco, above n 4, [74]. It is worth nothing that in that case the Tribunal examined findings made by the judge in charge of the determination of the bond, not of the merits.
[141] See Monte Confurco, above n 4, [80] and Volga, above n 4, [68]. On that aspect see, eg, R Baird, ‘Illegal, Unreported and Unregulated Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to Its Development and Persistence’ [2004] MelbJlIntLaw 13; (2004) 5 Melbourne Journal of International Law 299. For an Australian perspective and issues of interpretation of the Convention raised in Australian courts, see M White and S Knight, ‘Illegal Fishing in Australian Waters—The Use of UNCLOS by Australian Courts’ (2005) 11 Journal of International Maritime Law 110.
[142] Monte Confurco, above n 4, [79] and Volga above n 4, [69]. There should be no disproportion between such gravity and the amount of the bond. See above n 131. In his dissenting opinion in the Volga case, Judge ad hoc Shearer pointed to the ‘catastrophic declines in the stocks of many fish species throughout the world’ and observed that the circumstances that led to the achievement of the balance between the interests of the flag States and those of the coastal States when the Convention was negotiated have changed. For him, ‘the problems today arise from privately owned fishing vessels, often operating in fleets, pursuing rich rewards in illegal fishing and in places where detection is often difficult …A ‘new balance’ has to be struck between vessel owners, operators and fishing companies on the one hand, and coastal States on the other’. Dissenting Opinion Shearer, J ad hoc, [17], [19]. See also Quéneudec, above n 82, 92.
[143] Juno Trader, above n 2, [89].
[144] Ibid [90]-[91]. Counsel for the respondent indicated that under Guinea-Bissau fisheries legislation the offence committed by the vessel was punishable by a minimum fine of US$150,000 and a maximum fine of US$1 million and that, therefore, the fine actually imposed was not disproportionate. Verbatim Record III, 35. The penalty imposed, but not paid, was €175, 398. See above n 11 and accompanying text.
[145] Camouco, above n 4,[68]. Apparently the Tribunal did not take into account a penalty that is potentially imposable, that is, when no judicial action was taken before the Tribunal delivered its judgment. But see above n 120. In the same case, Judge Anderson considered that ‘greater weight’ should be attached to the gravity of the offence. Dissenting Opinion, Anderson J, 8.
[146] See Volga, above n 2, [70] and above n 116. Australia had requested AU$412,000 to secure payment of these fines. The total bail determined by the Full Court of the Supreme Court of Western Australia was AU$245,000.
[147] Monte Confurco, above n 4, [89]. See above n 133 and accompanying text. French law imposes a fine of FF500,000 per ton unlawfully caught. The French judge presumed that the 158 tons of fish were unlawfully caught and then set a bond of FF56,400,000 which included the value of the vessel set at FF15,000,000.
[148] The applicant estimated the vessel at US$460,000 and the respondent indicated an amount of US$800,000. Juno Trader, above n 2, [92].
[149] See Saiga (No 1), [83], Camouco [69], Monte Confurco, [84] (noting, however, that the values were not challenged by the respondent). In the Volga case, both parties agreed on the value of the vessel.
[150] Saiga (No 1), above n 4, [84]. The Tribunal noted that the gasoil had already been discharged.
[151] In the Monte Confurco case the catch had been seized and unloaded but had not been sold yet. It is possible that the Tribunal foresaw difficulties when choosing not to order its release (in particular a loss of value). If only the vessel stricto sensu is subject to release on bond under art 292 whereas a seized cargo may be retained as security by the detaining State, there certainly is a qualitative difference between vessels and cargos. This may be due in part to the assumption that catch is a fungible good and that vessels are more difficult and more expensive to replace. This may also be justified by the fact that a cargo of fish is a perishable good.
[152] The cargo consisted of more than 7 tons of toothfish, valued at FF380,000, which was confiscated and sold by the French authorities. The Tribunal noted this and the bond fixed to release the vessel and its Master admittedly incorporates that element.
[153] The Tribunal indicated that the 158 tons of fish, which had been seized by the French authorities, valued at FF9 million and which were to be sold by public tender, were to be considered part of the bond fixed to release the vessel and its Master. The other part was a bank guarantee in the amount of FF9 million which could only be invoked if the monetary equivalent of the fish was not enough to guarantee a final judgment in the merits. The Tribunal noted that both parties agreed on the value of the catch. Monte Confurco, above n 4, [85]. In the Saiga (No 1) case the discharged gasoil was declared to be security to be held in kind or in its monetary equivalent in US dollars at the time of judgment. Saiga (No 1), above n 4, [84].
[154] The Tribunal noted that the catch and bait had been sold by Australia. The proceeds were declared by the Tribunal to be a guarantee retained by the respondent or returned to the applicant, depending on the final outcome on the merits. This guarantee, however, was not included in the bond determined to release the vessel. The Tribunal held that ‘a bond … for the purpose of art 292 … is needed only to ensure full protection of Australia’s potential right in the vessel and possible fines against members of the crew. No such bond is necessary in respect of the catch since Australia holds the proceeds of the sale’. Volga, above n 4, [85]. Judge Jesus in the Monte Confurco case considered it ‘conceptually wrong … to consider as part of the bond or security any seized asset that, in the end, might be confiscated’. Dissenting Opinion, Jesus J, [33]. In that case, however, the Tribunal made it clear that ‘the seizure of the fish, the fishing gear and the vessel were effected with reference to the same offences. For the purpose of art 292 of the Convention, the Tribunal considers them as part and parcel of the same proceedings’. Monte Confurco, above n 4, [86]. This was a response to the French argument that under French law the value of the catch and of the fishing gear was not included in the bond fixed to release the vessel, as its confiscation was part of separate proceedings. Judge Jesus dissented because he thought it wrong to include in the bond the product of an alleged illegal activity. This view may be said to be conceptually wrong too since the vessel itself may be confiscated on the merits and its value is an element of the bond. The rationale in the Volga case seems to be that cargo which is held or sold by the detaining State does not guarantee the execution of a final judgment against vessels and crews. This, however, contradicts earlier cases. Also, it is not clear why the Tribunal in the Volga case referred to a bond needed to ensure possible fines against crew members while it had determined that the bail money already paid would fulfil that purpose. Volga, above n 4, [74], [85] and above n 116.
[155] See above n 18 and 19. The fish had been sold to Unique Concerns Ltd for US$459,938.65.
[156] Juno Trader, above n 2, [93]-[94]. In the Camouco case, the Tribunal relied on the estimation of the respondent so far as the catch was concerned. In the Monte Confurco and Volga cases, both parties had agreed on the same value. In the Saiga (No 1) and Juno Trader cases, the Tribunal relied on the figures provided by the applicant. See above n 12 .
[157] See Camouco, above n 4, [65] et seq, Monte Confurco: [89], Volga: [72] et seq. In all these cases the Tribunal concluded that the bond fixed domestically was not reasonable. In the Camouco and Monte Confurco cases the bond had been decided by a judge. In the Volga case, the owner of the vessel had instituted proceedings in Australia to prevent the forfeiture of the vessel and these proceedings were pending when the Tribunal delivered its judgment. However, the Australian Fisheries Management Authority had informed the owner that a bond of AU$3,332,500 would be required to release the vessel (the catch had already been sold). The owner refused to pay the requested amount. See Volga, [51]-[54].
[158] Judgment, above n 2, [98]. The Tribunal found that the €8,770 already paid to Guinea-Bissau for the fine imposed on the Master should also be considered as bond since payment of the fine had been suspended by the Regional Court of Bissau. The Tribunal ordered the return to the applicant (then supposedly to the shipowner) of the €50,000 bond previously offered but rejected. See Juno Trader, ibid, [99] and above n 15 and accompanying text.
[159] See the dissenting opinions of Judges Anderson and Laing in the Monte Confurco case.
[160] See the dissenting opinion of Judge Wolfrum in the Camouco case.
[161] See Franckx, above n 132, 334-335. 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. Even then, one may wonder how, then, the Tribunal took account of the gravity of the offences. See Tanaka, above n 55, 266.
[162] This includes not only the amount of the bond but also its form. On the first aspect, it is important to note that the Tribunal has constantly rejected demands that it fix no bond or only a symbolic bond. In the Juno Trader case, the Tribunal repeated its earlier finding that the prompt release procedure requires the posting of a bond. Juno Trader, above n 2, [97]. The amount of bond, however, is determined by taking into account all elements before the Tribunal. On the second aspect, the Tribunal insists that the bond may be in the form of a bank guarantee (and not only in cash or a certified cheque). Since the Camouco case, the Tribunal has dictated in part the content of the bank guarantee. Since the Volga case, the Tribunal requires that the bank guarantee be issued by a bank present in the detaining State or having correspondent arrangements with a bank in the detaining State. For the Juno Trader case, see [101]-[102] of the Judgment.
[163] See Continental Shelf Case (Tunisia/Libya) (Merits) [1982] ICJ Rep 18, 59.
[164] When it decided on the amount of compensation in the Corfu Channel case, the International Court of Justice relied on the claims submitted by the UK and considered them reasonable, proved and well-founded. The amount of compensation corresponds exactly to the amount claimed. It should be noted, however, that Albania was absent from the proceedings. See Corfu Channel Case (United Kingdom v Albania) (Assessment of the Amount of Compensation) [1949] ICJ Rep 244.
[165] ‘There does not, and cannot exist a universal rule for calculation. Cases differ from one another’. Corfu Channel Case, Dissenting Opinion Dr. Ečer, J ad hoc, [1949] ICJ Rep 254. ‘If one completes the comparison made by judge Laing on the occasion of the Camouco case, where he weighed the aggregate financial security decided by the Tribunal against the aggregate potential liability, a reasonable margin may be arrived at … If the financial security set by the Tribunal is compared with the value of the vessel and cargo, on the other hand, a totally different picture emerges’. Franckx, above n 132, 337-338.
[166] See above n 10 and contrast with the Monte Confurco case, above n 133 and accompanying text.
[167] Joint Declaration Kolodkin, Anderson, Cot JJ, [3].
[168] See Oxman and Bantz, above n 85 and accompanying text. But see D R Rothwell and T Stephens, ‘Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interest’ (2004) 53 International and Comparative Law Quarterly 171, 183.
[169] See V P Bantz, ‘La question de l’adhésion par les Etats-Unis à la Convention des Nations Unies sur le droit de la mer’ (2003) 8 Annuaire du droit de la mer 9, 29-32, 53-54.
[170] See S D Krasner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’ in S D Krasner (ed), International Regimes (1983) 2.
[171] If there exists such a thing as a closed regime. ‘Of course, specialization means specials regimes. But however autonomous and particular these may be, there cannot be a totally self-contained regime within the legal order. If the regime is to remain part of the legal order, some relationship, however tenuous, must subsist between the two. Otherwise … the special regime becomes a legal order onto itself—a kind of legal Frankenstein’. G Abi- Saab, ‘Fragmentation or Unification: Some concluding Remarks’ (1999) 31 New York University Journal of International Law and Politics 919, 926.
[172] Convention, art 293(1).
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