Detained Foreign Vessels Release: Cases from Russia

On December 23, 2002, the International Tribunal for the Law of the Sea (ITLOS) commanded the prompt release of the Russian longline fishing vessel named Volga. This vessel was actually confined by the Australian authorities in Fremantle pending the bond or other security of AU $3,332,500 (Gullett, 2003). The vessel and the crew were detained for supposedly fishing without authorization by a boarding side from the Royal Australian Navy frigate in the Australian Exclusive Economic Zone (EEZ) on February 7, 2002 (Gullett, 2003). In fact, the members of Volgas crew were accused of breaching the Australian Fisheries Management Act. According to Gullet (2003), Australian Court system initially bailed AU $ 75,000 for each member of the crew (there were 3 of them) but then raised it to AU $ 275,000. However, the main issue raised during the ITLOS proceedings did not relate to the facts whether the Russian vessels crew failed to follow the Australian fisheries law. It rather concerned the issue of whether the financial security and other requirements set by Australia as the circumstances for release ruptured Australia's obligation under the UN Convention on the Law of the Sea (Mensah, 2007). The Russian Federation claimed that the requested amount appeared to be exorbitant and violated the Convention itself, together with its provisions concerning the timely release of vessels and crews according to the Articles 73 and 292. Regardless of the fact that the issue of the reasonable bond amount had been reviewed by LTLOS during some previous occasions, the dispute of each case focused on the tenability of methods utilized by the arresting country to appoint the necessary financial security (Tanaka, 2012). The most significant facet of the proceedings in The Volga Case emphasized the fact that it was the first time when the Tribunal had been inquired to review and analyze whether extra non-fiscal circumstance could be appointed for the release of the arrested vessel.

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Thus, the main problem in debate concerned the issue of whether the appointment of the circumstance by Australia for the release of the vessel and crew violated and ruptured its commitment to liberate a vessel arrested under the act 73(1) upon the posting of reasonable bond or other security (Gullett, 2003, p. 397). The Russian Federation claimed that the release circumstances are supposed to be fiscal because of the actual pecuniary meaning of the security or bond (Tanaka, 2012). Therefore, the state claimed that any non-fiscal circumstances and requirements appointed by the arresting state appear to violate the act 73 becoming merely illegal. Providing the above-mentioned claim, the Russian Federation actually debated that Australia violated the requirement to respect the substantive equilibrium. As LOSe anticipates, it has to appear between the rights of coastal countries to constrain legislation, which they ordained while exercising their sovereign rights in the EEZ and expecting that the arrested vessels will be appropriately liberated on rational conditions (Mensah, 2007). Therefore, the Russian Federation outlined Australias appointment of the above-mentioned bond explained, for instance, by the installing of an operating vessel monitoring system as a potential sanction that might usurp the functioning of the flag state of monitoring and policing its own vessels and crews (Mensah, 2007). Thus, Russia debated that Australia presumed the role and function of the flag state and extended the ambit of the bond into areas, which are merely not planned by the act 73.

Nevertheless, Australia answered that the appointment of non-fiscal settings for the vessel and crews release was rational and reasonable as based on two principal concerns. The first one lies in the fact that Australia has to secure pliability by foreign vessels with Australian regulations and international requirements awaiting the closure of domestic proceedings (Gullett, 2003). The second one encompasses the fact that there is a high level of international concern regarding unlawful fishing and its affect of subverting domestic and regional regimes objected at ensuring sustainable management of marine resources (Gullett, 2003). Thus, Australia debated that in defining the tenability of the bond, the conditions of the case should not be viewed through the narrow angle, which means that the incessant issue of unlawful fishing has to be taken into account (Mensah, 2007). The VMS that the Russian Federation mention would help Australia to monitor and control the location of the vessel and see when it illegally enters the CCAMLR area to fish for Patagonian toothfish (Gullett, 2003). The state also explained the issue concerning the flag states asserting that taking into account the experience of vessels of being incessantly reflagged in order to impede the attempt to define them in case they conduct unlawful fishing activities, the activities help to deal with the issue and not make the country violate the act. 

 
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In view of the facts, the Tribunal stated that the expression bond or other security in art 73(2) has to be regarded as referring to a bond or security of a financial nature (Tanaka, 2012, p. 175), which meant that non-financial circumstances cannot be regarded as constituents of a bond. In regard to the bond requisition connected to the VMS usage, the Tribunal had to define whether it lied within the meaning of act 73 (Mensah, 2007). The tribunal arrived at a decision that the issue in question was negative. Therefore, the Tribunal concluded that the bond requested by Australia could not be viewed as well-grounded under the purport of art 292. In addition, the Tribunal decided that the bond for the vessel was exorbitant and requested to limit it to the assessed value of the vessel itself amounting for AU $ 1,920,000 (Gullett, 2003).

Arctic Sunrise Arbitration (Netherlands vs Russia)

The case started on September 18, 2013. This was the morning when two activists from Greenpeace tried to stage the non-violent protest on the Gazprom-functioning oil platform, which is situated in the EEZ of the Russian Federation (Elferink, 2016). The facts demonstrate that the Russian Federation administration answered to the protest during the following day, specifically by boarding and seizing the Arctic Sunrise, which appeared to be a Netherlands-flagged Greenpeace vessel (Elferink, 2016). The vessel was subsequently towed to the northern Russian port of Murmansk (Noto, 2016). The vessel was held in the port city even regardless of the requests from the Netherlands for its release. In addition, the Russian authorities detained the Greenpeace activists charging them with piracy, administrative and criminal offences (Noto, 2016). Despite the fact that in a month, the Russian authorities unhanded the piracy charge, they replaced it with the armored hooliganism one (Noto, 2016). As Russia did not respond to the Netherlands requests to release the vessel, the state commenced arbitral proceedings against the Russian Federation under UNCLOS art 72 (Elferink, 2016). On November 22, according to the constitution of Tribunal, the ITLOS commanded the Russian Federation to liberate the vessel and its crewmembers upon the bond amounting for EUR 3.6 million (Elferink, 2016, p. 396). The Russian Federation did not take part in the proceedings at any stage referring to the proclamation it made when becoming a part of the UNCLOS. The proclamation states that it does not accept procedures provided for in Section 2 of Part XV of the Convention, concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction (Elferink, 2016, p. 396). Before the actual discussion of the merits of the Netherlands claims, the Tribunal started with the issues of admissibility and jurisdiction and arrived at the conclusion that the proclamation made by the Russian Federation did not expel according to the existing evidence the dispute from the jurisdiction of the Tribunal. Thus, in accordance with the art 298, the unrequited exclusion about disputes regarding the exercise of sovereign rights or jurisdiction merely is relevant to marine scientific research and fisheries (Tanaka, 2012). This was the case when neither of those appeared to be at issue. This meant that the Tribunal had jurisdiction over the case according to the existing Convention.

Due to the fact that the Russian Federation refused to participate in the proceedings, the ITLOS was induced to discuss the influences of a default of appearance (Noto, 2016). It arrived at the conclusion that the absence of the state does not impede the proceedings of the case. This was the reason why the Tribunal ordered for provisional measures by majority votes. The Tribunal allowed the flag state of the vessel to espouse clams on behalf of the multi-national crew against the Russian Federation regardless of the fact that 3 of the crewmembers status as Russian nationals (Karaman, 2012). Afterwards ITLOS issues a command ordering the Russian Federation to release the crew encompassing Russians (Noto, 2016). It is important to mention that art 18 neither denies nor confirms the Netherlands right of diplomatic protection in current scenario, but it appears to be compatible with a number of well-established doctrines of international law. As the majority vote in a number 19 to 2, the Tribunal prescribed the Russian Federation to release the vessel and all people who have been arrested upon posting a bond (Noto, 2016). The order to release all people who were arrested allowed ITLOS to make the international judicial history as international tribunal has never ordered the release of states nationals being prosecuted under that states domestic regulations.

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Hoshimaru and Tomimaru Cases (Japan v Russia)

On July 6, 2007, Japan filed applications with the Tribunal for the Law of the Sea seeking prompt release on bond of two Japanese-flagged fishing vessels arrested by the Russian federation for illegal fishing in its EEZ off eastern Siberia (Hong & Dyke, 2009). One - the 88th Hoshinmaru - was detained slightly over a month earlier (Hong & Dyke, 2009). The other one - the 53rd Tomimaru - was detained over eight months earlier. In its judgments of August 6, 2007, the Tribunal granted the application for release of the Hoshinmaru fixing a lower bond than the Russian Federation had specified but denied the application for the release of the other vessel (Hong & Dyke, 2009).

Despite the fact that these were the eighth and ninth applications for prompt release field with the Tribunal, they had some novel features. They are the first such cases involving fishing in the North Pacific. The applications were filed by a state that had not historically resorted to adjudication to resolve its disputes, and against a state that, before the actual dissolution of the USSR, was not typically noted for its compliance to compulsory proceedings, the law of the Sea Convention indicated a remarkable transformation (Ikeshima, 2009). In addition, despite the fact that earlier prompt release cases involved vessels not authorized to fish in the EEZ of the arresting state, the fishing vessels in these cases were licensed by the Russian Federation to fish in its EEZ at the time of the arrest (Tanaka, 2012). The alleged infractions connected to falsification of the type and volume of catch, in the case of the Tomimaru, catch not permitted by the license. In the case of the Tomimaru, the vessel was boarded in the Russian EEZ on October 31, 2006 and arrested after an inspection revealed that 5.5 tons of walleye Pollack on board were unaccounted for (Hong & Dyke, 2009). A subsequence inspection uncovered at least twenty tons of fish species, which was not noted or registered in the logbook, as well as other catch whose capture was not allowed (Hong & Dyke, 2009). Criminal proceedings were instituted on November 8 against the master who was commanded to remain while other crew members were allowed to leave following the investigation. Separate administrative processes were commenced against the owner. The prosecutor in the criminal case fixed the bond on December 12 (Hong & Dyke, 2009). However, the court hearing rejected the petition for the bond imposing a fine and confiscating the vessel and the equipment. The Russian Federation explained to the Tribunal that the Supreme Court dismissed the owners petition due to the fact that there were no ground for review of the judgment. On August 6, 2007, the Tribunal rendered its unanimous judgment that the Application of Japan no longer has any object and that the Tribunal is therefore not called upon to give a decision thereon (Hong & Dyke, 2009, p. 223).

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In fact, art 73 provides that the coastal state may take such measures in the EEZ including inspection, boarding, arrest, and judicial proceedings, as may be necessary to ensure compliance with its laws and regulations regarding exploration, exploitation, conservation and management of living resources (Hong & Dyke, 2009, p. 224). The only restriction concerns the fact that they may not include imprisonment in the absence of agreement to the contrary by the states concerned, or any form of corporal punishment (Tanaka, 2012). Therefore, art 73 permits the confiscation of the catch, the vessel, and equipment as punishment for the violation of coastal state laws and regulations.

In regard to Hoshinmaru case, the vessel appeared to have a valid license allowing to fish in the EEZ of the Russian Federation, but it was accused of exceeding the provided quota on specific species and falsely recording its catch to conceal the overage (Tanaka, 2012). The bond eventually appointed by the Russian Federation was grounded on the maximal imposable penalties and fines comprising US $ 863,000 (Hong & Dyke, 2009). Nevertheless, the Tribunal regarded the approach ungrounded and unreasonable. It is important to explain that the offense committed by the vessels owner should not be viewed as a minor one or having a genuine technical character; the Tribunal believed that maximal penalties were too high and requested to lower the bond by 50 percent (Tanaka, 2012). While the critique may seem to be unduly pedantic number crunching, the gap between the Tribunals reasoning and the amount of bond ultimately set by it cannot go unnoticed (Tanaka, 2012). By refusing to provide guidance on weight to be attached to the factors relevant to the setting of a reasonable bond of the objectivity, or at any rate transparency, the Tribunals assessment is open to criticisms for failing to provide clear rules, on which domestic courts can rely in performing their functions in compliance with international law.

The presented cases reveal the importance of specific legal procedures for release of foreign vessels. The Volga and Hoshinmaru cases vividly demonstrate that coastal states are restricted to appointing financial conditions for the release of the arrested foreign vessels. This is an essential constraint on states that have huge EEZs, in which foreign fishing vessels unlawfully target species. The decision might elevate the prospect of owners of detained foreign vessels requesting their national authorities to utilize the prompt release procedures as a method of evading solid coastal state fisheries regulations. This demonstrates that there is a requirement to modify art 73 to regard the increase in IUU fishing and current fisheries management and law enforcement exigencies. On the other hand, the Arctic Sunrise case revealed a ship as a unit concept applying the diplomatic protection allowing the flag state espousing claims in the name of the whole vessels crew regardless of the actual nationality of the crew members. Finally, based on the Tomimaru case, the paper demonstrates that the laws are fair as in the case when the coastal state laws were violated, everything including the catch, the vessel, and equipment can be confiscated in a form of a punishment. Nevertheless, the presence of a number of maritime claims, especially from one state, which are close in regard to the time distance, might create extra restriction with respect to the applicability of PRP itself. Therefore, ITLOS should take actions to understand why costal states violate the regulations in order to make PRP even more effective.

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