International Tribunal for the Law of the Sea - exclusive economic zone - arrest of fishing vessel - duty of prompt release on bond - effect of confiscation of vessel - international standards of due process of law.

Author:Oxman, Bernard H.

International Tribunal for the Law of the Sea--exclusive economic zone--arrest of fishing vessel--duty of prompt release on bond--effect of confiscation of vessel--international standards of due process of law

THE "TOMIMARU" (Japan v. Russian Federation). Judgment. ITLOS Case No. 15. At .

International Tribunal for the Law of the Sea, August 6, 2007.

Japan filed applications with the International Tribunal for the Law of the Sea on July 6, 2007, seeking prompt release on bond of two Japanese-flag fishing vessels detained by Russia for illegally fishing in its exclusive economic zone (EEZ) off eastern Siberia. One, the 88th Hoshinmaru, had been arrested slightly over a month earlier. The other, the 53rd Tomimaru, had been arrested over eight months earlier, on October 31, 2006. In its judgments of August 6, 2007, the Tribunal granted the application for release of the Hoshinmaru, (1) fixing a lower bond than Russia had specified, but denied the application for release of the Tomimaru on the ground that it was without object (para. 76). (2)

The chronology of events with respect to the Tomimaru is as follows:

On October 31, 2006, the Tomimaru was boarded in the Russian EEZ and arrested after an inspection revealed that five-and-one-half tons of walleye pollack on board were unaccounted for (para. 24). A subsequent inspection uncovered at least twenty tons of gutted walleye pollack that were not listed in the logbook, as well as other catch whose capture was forbidden (para. 25).

Criminal proceedings were instituted on November 8 against the master, who was ordered to remain in Russia (para. 26). Other crew members were permitted to leave following the investigation (para. 30).

Separate administrative proceedings were instituted against the owner on November 14 (para. 31).

The prosecutor in the criminal case fixed bond on December 12 (para. 36). Two days later, the owner sent a letter noting this fact and requesting that bond also be fixed with respect to the administrative offenses with which the owner was charged (para. 37).

On December 19, the court hearing the administrative charges rejected the petition for bond (para. 39). On December 28, that court imposed a fine and confiscated the vessel and its equipment (para. 42). This decision was affirmed on appeal by the Kamchatka District Court on January 24, 2007 (para. 43). On March 26, the owner petitioned for review of this decision by the Supreme Court of the Russian Federation; that petition was still pending at the time Japan filed the application for prompt release before the Tribunal (id.).

On April 9, the vessel was seized by the state and entered in the Federal Property Register as property of the Russian Federation (para. 44).

On May 15, a trial court imposed a fine on the master and awarded damages against him. The fine was paid but not the damages. The master was allowed to leave for Japan on May 30, with an appeal pending before the Kamchatka District Court (para. 45).

On July 6, Japan requested the Tribunal to order prompt release on bond (para. 1). Oral hearings were held on July 21 and 23 (para. 17). A few days later, on July 26, Russia informed the Tribunal that the Supreme Court of the Russian Federation had dismissed the owner's petition because there were no grounds for reviewing the judgment (para. 46). (3)

The Tribunal's opinion in "Tomimaru" emphasized that "a decision to confiscate a vessel does not prevent the Tribunal from considering an application for prompt release of such vessel while proceedings are still before the domestic courts of the detaining State" (para. 78). In this regard the Tribunal noted "that the decision of the Supreme Court of the Russian Federation brings to an end the procedures before the domestic courts" and "also that no inconsistency with international standards of due process of law has been argued and that no allegation has been raised that the proceedings which resulted in the confiscation were such as to frustrate the possibility of recourse to national or international remedies" (para. 79). (4) The Tribunal ruled unanimously that "the Application of Japan no longer has any object and that the Tribunal is therefore not called upon to give a decision thereon" (para. 82).

Although the "Hoshinmaru" and "Tomimaru" cases were the eighth and ninth applications for prompt release filed with the Tribunal, they had some novel features. They are the first such cases to involve 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, prior to the dissolution of the Soviet Union, was not generally noted for its amenability to compulsory jurisdiction--the Russian Federation's acceptance of the Law of the Sea Convention (5) (LOS Convention) marking a notable change. (6) Also, while earlier prompt release cases involved vessels not authorized to fish in the EEZ of the arresting state, in these cases the fishing vessels were licensed by Russia to fish in its EEZ at the time of the arrest; the alleged infractions related to falsification of the type and volume of catch (7) and, in the case of the Tomimaru (paras. 24, 25), catch not permitted by the license.

Although the "Tomimaru" case was the third occasion on which the detaining state challenged a prompt release application on the ground that the fishing vessel had been confiscated, this case was the first in which the Tribunal faced the issue squarely. France argued in the "Grand Prince" case, (8) Guinea-Bissau argued in the "Juno Trader" case, (9) and Russia argued in the "Tomimaru"...

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