Law of the Sea

Then, the detained vessel Anna shall be promptly released when the reasonable bond or financial security posted. Under the Convention, the purposes of prompt release are to provide the quick release of a vessel and its crew in regard to humanitarian consideration for the crews and to avoid unnecessary loss of ship and damages by detention. In addition, penalty for the breach of fisheries law and EEZ regime must not include the imprisonment of crews. However, In this case the State A and B have not reached an agreement for releasing the vessel. The State B has claimed that the bond is not reasonable. Hence, as Aust argues, if state parties cannot be reached an agreement, the state must resort to the dispute settlement procedure of the Convention. According to article 279 of the Convention, The State A and B should settle the dispute by peaceful means in accordance with article 2, paragraph 3 of the Charter of the United Nations and they must seek a solution by the means indicated in Article 33, paragraph 1, of the Charter. However, Shaw states that parties can choose other method that the fisheries disputes within member states of European Union can be solved by the European Court of Justice. In addition, when a dispute arises between state parties, the parties must proceed quickly and exchange their views by negotiation or other peaceful means. The parties can request dispute to court or tribunal under the article 286 and a state shall freely choose one or more procedures in accordance with article 287 of the Convention. In this case, as the State A has brought the case to the International Tribunal for the Law of the Sea, the Tribunal will examine the case.

Similar to the Anna case, Prompt release has been raised for issues in many times in International Tribunal for the Law of the Sea. In the Camouco case the reasonableness of the bond and the criteria for the form of the bond were discussed, because of the disagreement of the amount of money was imposed by French authority. Thus, the reasonable bond was imposed by the tribunal in respect to the criteria of reasonable bond or security were set in the Saiga case (para 66, 67). Gadner claims that it indicates how domestic jurisdiction is applied in accordance with the special regime of the Convention. In the Volga case, it is clearly established that prompt realise is subject to the arrested foreign vessel. The application was made by Russian Federation that the conditions of bond were neither permissible nor reasonable. However, the tribunal concluded that the bond, which sought by Austria, was reasonable in regard to the criteria of reasonableness of bond 292 and the vessel shall be promptly realised when the bond or financial security posted in the form of a bank guarantee. Therefore, as State A and State B have not agreed the reasonableness of the bond, the reasonable bond and form of the payment shall be set by the tribunal in regard to the criteria of reasonable bond were set above the cases.

However, the possible issue can be discussed in the Anna case such as the nationality of the vessel. In the Grand Prince case, France was unaware of the actual owner of the vessel. Hence, the government of the French Republic requested the tribunal that the application was inadmissible. The respondent delivered that there is no jurisdiction to entertain the application in accordance with paragraph 2 of the article 292, the application for release could be made only by or on behalf of the flag state of the vessel. The tribunal examined the genuine link of the vessel and it was found that the Grand Prince was registered in Belize and Belize was the flag state of the vessel when the application was made. Similarly, in the Juno Trader case, the respondent argued that the ownership of the vessel reverted to Guinea-Bissau with effect from 5 November 2004. Therefore, Saint Vincent and the Grenadines may not the flag state of the vessel anymore and the tribunal has no jurisdiction. However, the tribunal noted that there is no legal basis whether Saint Vincent and the Grenadines was not the flag state of the vessel when its application for prompt release was submitted. Therefore, the tribunal found that the application was admissible and the crew and vessel shall be promptly released when the payment for prompt release is posted in the form of bank guarantee. Therefore, as the Anna is registered in the State B the application of the prompt release is applicable.

In the Tomimaru case, two issues arose; the impact of the confiscation on the nationality of the vessel; and the admissibility of the prompt release application as a consequence of the confiscation. Firstly the Tribunal distinguished that the ownership of the vessel and the nationality of the ship is different. Therefore, the change of the ownership does not automatically lead to the change or loss of its flag. Secondly, as it was stated in the Monte Confurco case confiscation of a fishing vessel must not be used to upset the interests of the flag state and of the coastal state. In addition, the Tribunal noted that it is a responsibility of the flag state to take action within reasonable time either to have recourse to the national judicial system of the detaining State or to initiate the prompt release procedure under article 292 of the Convention in order to achieve its objectives. In addition, the Tribunal noticed that the Supreme Court of the Russian Federation ended the procedures before the domestic courts. Considering that the Tribunal stated that article 292 of the Convention to release the vessel contradicts to decision which made before the appropriate domestic forum. Therefore, article 292, paragraph 3, of the Convention may not be applicable. Consequently, the Tribunal decided that the application is without object and the Tribunal does not give a decision.

Again in the Saiga case, there are numerous discussions of prompt release. The applicant requested the Tribunal the release of the vessel without bond or financial security. However, the Tribunal concluded that the bond or financial security is necessary in accordance with the nature of the prompt release. Therefore, in the case of the Anna, the reasonable bond or financial security must be posted for the release of the Anna. However, in later proceeding 1 July 1999, the Tribunal noticed that whether there is the right of hot pursuit because the arrest of the vessel conducted one day after the bunkering. The Tribunal found that no laws or regulations of Guinea were violated by the Saiga. Thus, the Tribunal concluded that there is no right of hot pursuit in this case. Moreover, the Tribunal noticed that officials of Guinea used excessive force and endangered human life during the arrest of the Saiga. Hence, the compensation was imposed for suffering damages and internationally wrongful acts.

        In conclusion, as there is no obvious evidence which State B has violated the regime of the continental shelf, further investigation will be conducted. However, there is no doubt that State B has violated sovereign right in the EEZ of State A and as it can be seen it the Saiga case it is necessary to post reasonable bond or financial security in accordance with the nature of prompt release of the vessel. However, as State B claims the bond is not reasonable it must request to the Tribunal to examine the reasonableness of the bond considering the criteria of the reasonable bond. In addition, the application should be given in reasonable time to the Tribunal. On the other hand, State A must ensure that it should not use excessive force during the detention the vessel and imprisonment cannot be conducted. Otherwise, State B shall request further proceedings to the Tribunal due to internationally wrongful act. In addition, as it is certain that the Anna is registered in State B the claim of the nationality of the vessel would be meaningless. Consequently, State A must release the Anna when the bond or financial security, which is determined by the Tribunal, posted by State B in accordance with the Convention. Furthermore, the crucial point is to resolve the dispute by peaceful means in accordance with the article 279 of the UN Convention on the Law of the Sea.  

Bibliography

Texts

Aust, A. (2002) Handbook of International Law Cambridge, Cambridge University Press

Churchill R. R and Lowe A, V. (1999) The Law of the Sea (3rd edition), Manchester, Manchester University Press

Dixon, M. (2005) Textbook on International Law (5th edition) London, Blackstone

Gardiner, Richard K. (2003) International Law, Essex, Longman

Shaw, M.N. (2003) International Law (5th edition) Cambridge, Cambridge University Press

Cases

Camouco Case (2000) Panama v. France

Grand Prince Case (2001) Belize v. France

Hoshinmaru Case (2007) Japan v. Russian Federation

Juno Trader Case (2004) Saint Vincent and the Grenadines v. Guinea-Bissau

Monte Confurco Case (2000) Seychelles v. France

M/V Saiga Case (1997) Saint Vincent and the Grenadines v. Guinea

M/V Saiga (NO. 2) Case (1999) Saint Vincent and the Grenadines v. Guinea

Tomimaru Case (2007) Japan v. Russian Federation

Volga Case (2002) Russian Federation v. Australia

Treaties

1982 United Nations Convention on the Law of the Sea