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Published online by Cambridge University Press: 27 February 2017
1 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 7, 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter LOS Convention].
2 The facts are summarized in paras. 25–29 of the Tribunal’s decision, The “Camouco” (Pan. v. Fr.), Judgment, ITLOS Case No. 5 (Feb. 7, 2000) [hereinafter Judgment]. The Judgment, along with the other case documents cited in this report, are available online at <http://www.un.org/Depts/los/ITLOS/5Camouco.htm>. Where no paragraph numbers appear in an opinion or in the verbatim records, references are to page numbers as they appear in the text downloaded from the Web site by the authors. The page numbers are included for convenience and are not necessarily exact.
3 Article 292(2) of the Convention authorizes applications for release “by or on behalf of” the flag state. The application was filed “on behalf of Panama” by a Spanish attorney who had been authorized by Panama to do so, although it was accompanied by a communication from the Embassy of Panama in Brussels appointing that attorney as “Agent of Panama.” The same attorney represented the owners of the vessel in the French courts. See Judgment, supra note 2, para. 2; Verbatim Record (Application for Prompt Release) (Jan. 27, 2000), Doc. ITLOS/PV.00/1, at 5 [hereinafter Verbatim Record I]. The fact that the application was filed by the owner’s attorney “on behalf of” rather than “by” Panama suggests particular caution in attributing to Panama any interpretations of the Convention and other legal arguments proffered to the Tribunal: this report, accordingly, refers to the “applicant” and, in so doing, reflects the view that the Tribunal could have been more precise in fashioning the title of the case—for example, by using the ex rel. formulation used by many municipal courts. It may be recalled that the alternative between filing applications “by” and “on behalf of” the flag state is afforded by the Convention only in the context of Article 292 proceedings, and was a compromise with the views of those who wished direct access in such proceedings by the owner or operator of the ship or representative of the crew. See Bernard H., Oxman, Observations on Vessel Release Under the United Nations Convention on the Law of the Sea, 11 Int’l J. Marine & Coastal L. 201, 211–13 (1996)Google Scholar.
4 The majority consisted of President Chandrasekhara Rao, Vice-President Nelson, and Judges Zhao, Caminos, Marotta Rangel, Yankov, Yamamoto, Kolodkin, Park, Bamela Engo, Mensah, Akl, Wolfram, Laing, Treves, Marsit, Eiriksson, Ndiaye, and Jesus. Judges Anderson and Vukas dissented. Judgment, supra note 2, para. 78 (3).
5 Judges Kolodkin, Anderson, Vukas, Wolfrum, Treves, and Ndiaye dissented. Id,, para. 78(4).
6 The applicant requested a translation into Spanish of the decision. The Tribunal did not accede to this request because Spanish was not a language chosen by the parties in their pleadings. Id., para. 77; see Art. 64(4) of the Rules of the Tribunal.
7 See infra notes 43–44.
8 The Camouco had left the Namibian port of Walvis Bay in September 1999 in order to engage in longline fishing in the southern seas. At the time of the arrest, it was owned by Merce-Pesca (S.A.), a Panamanian corporation that was itself owned by two Spanish companies, Pesquera Mellon and Iminal Armadores. There were 29 crew members: 18, including the master, were Spanish nationals; 8 were Portuguese; 2, Chilean; and 1, Namibian. The vessel held a fishing license issued by Panama to Merce-Pesca to fish for “Patagonian toothfish” on the high seas in the South Atlantic.
Between June 1998 and July 1999, the same vessel, then named the Saint-Jean, had been chartered by French operators and provisionally registered in the Kerguelen Islands under the French flag. At that time, it was licensed to fish for toothfish in the French EEZ around Crozet, and also received a fishing license issued by French authorities under the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (May 21, 1980, 33 UST 3476).
There is no indication that the Camouco was arrested for fishing in the area to which CCAMLR applies. France did not assert that it was implementing CCAMLR conservation measures, but did note that illegal, unregulated, and undeclared fishing in the EEZ, especially around Crozet, had disastrous consequences. See Verbatim Record, (Application for Prompt Release) (Jan. 27, 2000), Doc. ITLOS/PV.00/2, at 7 [hereinafter Verbatim Record II]. This argument may explain Judge Wolfrum’s complaint that “the Tribunal should have taken notice of the commonly known fact that the fishing activities such as allegedly undertaken by the Camouco undermine the fishing regime established under [CCAMLR] and the conservation measures taken thereunder.” Diss. Op. Wolfram, J., para. 17. It is not clear whether the Tribunal’s failure to do so reflected concerns that such an analysis might invite inconclusive debate as to whether environmental protection or economic protectionism explains the enthusiastic enforcement in question; allocation is the central issue in fisheries conservation.
9 On Oct 1, 1999, the owners of the vessel sent a fax to the French Departmental Directorate of Maritime Affairs and expressed their surprise at the presence of the vessel in the EEZ of Crozet. They stated that the captain violated his instructions by entering the EEZ, and apologized for the incident. See Verbatim Record I, supra note 3, Annex 15.
10 See id., Annex 11.
11 “Judicial supervision may be ordered by the investigating magistrate if the person under investigation faces a penalty of imprisonment. . . . “ Code of Criminal Procedure, Art. 138 (authors’ translation).
12 Except for four members who remained on board to see to the maintenance of the Camouco, the crew left Reunion on Oct. 13, 1999. See Judgment, supra note 2, para. 34.
13 The Regional and Departmental Directorate of Maritime Affairs estimated the value of the vessel at 20 million francs, although there is no record of any survey. The value of the cargo was estimated at 380 thousand francs. It was decided that the catch itself (7, 600 kg. of toothfish) would be sold as provided by French law. See id., para. 69; Verbatim Record I, supra note 3, Annex 16.
14 See Verbatim Record I, supra note 3, Annex 21.
15 See id., Annex 19. In its response, the Regional and Departmental Directorate for Maritime Affairs concluded that the defendant did not have standing to invoke Article 73 (4). As regards the bond, the directorate relied on the French text of Article 73(2) of the Convention and considered a 20 million franc bond to be suffisante. Id., Annex 20; see infra note 26 and accompanying text.
16 In his reasoning, the chief magistrate noted:
Attendu qu’il appartient au juge saisi de fixer le cautionnement par application des règies fixées à l’article 142 du Code de procédure pénale; qu’il n’à pas a rendre compte des éléments sur lesquels il s’est fondé pour à la fois garantir le paiement des pénalités encourues et garantir la représentation des prévenus en justice, eu égard à la nature des faits.
Verbatim Record I, supra note 3, Annex 21. See Judgment, supra note 2, para. 42.
17 Although the point was not raised in the proceedings, it is possible that some of the Panamanian officials whose opinions might have been sought before authorizing an application for vessel release to an international tribunal were preoccupied during the fall of 1999 with preparations for the assumption of full control over the Panama Canal at the end of the year.
18 Judgment, supra note 2, para. 54.
19 Id., paras. 59–60. French law requires fishing vessels entering the EEZ of the French Southern and Antarctic Territories to indicate their presence and declare to the district head of the closest islands what tonnage of fish they have on board. Failure to do so is punishable by a fine of one million francs or a prison sentence of six months, or both. Art. 4 of Law No. 66–400 of June 18, 1966, as amended by Law No. 97–1051 of Nov. 18, 1997; J.O. of June 21, 1966, at 5035; J.O. of Nov. 19, 1997, at 16723; see Judgment, supra note 2, para. 39.
The underlying question is whether such measures violate the freedom of navigation in the EEZ guaranteed by Article 58 of the Convention, particularly since the elaborate provisions of Articles 61 to 73 of the Convention regarding coastal state rights to regulate fishing in the EEZ say nothing about prior notification of entry into the EEZ. Revealing something less than intimate familiarity with the Convention, the application in its challenge to these measures incorrectly referred to the right of innocent passage in the EEZ. See Verbatim Record I, supra note 3, para. 92. Even more surprisingly, the application conceded that imposing a fine (and not merely an evidentiary presumption) for failure to advise of entry into an EEZ seemed normal and may form part of the means a coastal state has to control access to its EEZ. The application merely asserted that the fine itself was disproportionate. See id., para. 99. In addition, the application deemed it an abuse of right to establish an irrebuttable presumption that, absent notice of entry into the EEZ, all the fish found on board the Camouco were deemed to have been caught in the French EEZ.
In its Statement in Response, France did not address the consistency with the Convention of the notification requirements and related presumptions of French law. During the oral proceedings, however, the French agent noted that French law did not establish an irrebuttable presumption, but a simple presumption, the effect of which was to shift the burden of proof. Verbatim Record II, supra note 8, at 11.
20 See Verbatim Record I, supra note 3, Annex 17. The bond ordered by the French court related only to release of the vessel. See Art. 3 of Law No. 83–582 of July 5, 1983; J.O. of July 6, 1983, at 2065. French statutes do not provide for compulsory bail of an individual placed under judicial supervision. Under French law, judicial supervision is different from, and does not entail, provisional detention pending trial. See Code of Criminal Procedure, Art. 144. Although a person under judicial supervision may be required to surrender a passport or post security, the person is not thereby released from judicial supervision. See Code of Criminal Procedure, Art. 138(11). The result is similar to that which might obtain in other systems where a foreign defendant is released pending trial on condition that he remain within the jurisdiction and surrender his passport.
21 According to Article 140 of the French Code of Criminal Procedure, release from judicial supervision may be ordered at any time by the investigating magistrate, whether sui sponte, on motion of the public prosecutor, or upon request of the person concerned (the court having received the opinion of the public prosecutor).
22 Verbatim Record I, supra note 3, at 22.
23 Judgment, supra note 2, para. 71.
24 See Verbatim Record II, supra note 8, at 14.
25 Judgment, supra note 2, para. 57.
Article 292 provides for an independent remedy and not an appeal against a decision of a national court. No limitation should be read into Article 292 that would have the effect of defeating its very object and purpose. Indeed, Article 292 permits the making of an application within a short period from the date of detention and it is not normally the case that local remedies could be exhausted in such a short period.
Id., para. 58. Prior to his election to the Tribunal, Judge Anderson stated that “it should not be presumed that Art. 295 is inapplicable, especially where a right of appeal is clearly a real possibility.” David H., Anderson, Investigation, Detention and Release of Foreign Vessels Under the UN Convention on the Law of the Sea of 1982 and Other International Agreements, 11 Int’l J. Marine & Coastal L. 165, 170 (1996)Google Scholar. Others disagreed at the time. See Oxman, supra note 3, at 210–11 (“[i]nsofar as vessel release proceedings are concerned, there is no lack of persuasive arguments that Article 295 does not require exhaustion of local remedies . . . and that other provisions of Part XV that might frustrate or delay the proceedings are inapposite”). Although Judge Anderson appears to have moderated his view, he still failed to see how waiting for the result of the appeal could defeat the object and purpose of Article 292 when an applicant seeks a reduction in the amount of the security prescribed on appeal just a few days before seeking the same remedy from the Tribunal. Diss. Op. Anderson, J., at 2. Judge Vukas also disagreed with the majority on the question of lis pendens. In addition, he saw no reason for applying to the Tribunal one hundred days after the detention. Diss. Op. Vukas, J., paras. 5–7.
26 In Articles 111 and 113 of the Rules of the Tribunal, the words reasonable and raisonnable are also used in this context.
27 The authentic texts of the Convention are Arabic, Chinese, English, French, Russian, and Spanish. Convention, Art. 320. The words at issue are Latin-based cognates in English, French, and Spanish. According to Tarek Sayed, the Arabic text uses the same word for reasonable in all three articles. Kuo-ching Pu tells the authors that the word used in Chinese in Article 73 is different from the word used in both Articles 226 and 292, and that whereas the latter is properly understood to mean reasonable, the former might better be understood to mean suitable. Danil Khvedtchik informed the authors that the Russian text of the three articles also contains inconsistencies on this point, but the discrepancy is in Article 226 and may relate to the fact that the clause modified in that article is “procedures such as bonding.”
28 Verbatim Record (Application for Prompt Release) (Jan. 28, 2000), Doc. ITLOS/PV.00/3, at 9 [hereinafter Verbatim Record III].
29 Judge Anderson does invoke the French text. See Diss. Op. Anderson, J., at 5, quoted infra note 37.
30 See supra note 16.
31 This point was ultimately dropped. The Tribunal had previously stated that it could not “accede to the request . . . that no bond or financial security (or only a ‘symbolic bond’) should be posted. The posting of a bond or security seems to the Tribunal necessary in view of the nature of the prompt release proceedings.” M/V “Saiga” (St. Vincentv. Guinea), ITLOS Case No. 1 (Dec. 4, 1997), para. 81, <http://www.un.org/Depts/los/Judgment- Saiga.htm>
In this context, it might be borne in mind that the duty to release under Articles 73 and 226 applies even if the arrest is lawful, and is expressly dependent upon the posting of bond or other financial security. Article 292 proceedings relate to this duty. The same considerations would not necessarily apply to a request for provisional measures under Article 290—for example, in a case in which the right to arrest and detain is itself contested on the merits. When a municipal court requires a party requesting provisional measures to post bond in a civil case, the purpose is to balance the risks and costs of provisional measures to both parties. The context is different when questions of bail and bond arise in criminal cases, such as those addressed by Articles 73 and 226.
32 See Verbatim Record III, supra note 28, at 13.
33 France explained that the maximum fine that may be imposed upon the master was 5.5 million francs, and that the maximum fine that may be imposed upon the owner as a juridical person was 25 million francs (under French law, five times the amount that might be imposed upon a natural person).
34 Verbatim Record II, supra note 8, at 17.
35 Id. at 16.
36 Judgment, supra note 2, para. 65.
37 Id., para. 67. Judge Laing believed that the Tribunal should determine a proper international standard and should not seek to enforce the domestic laws of the detaining state. Decl. Laing, J., at 2. Judge Ndiaye was of the view, however, that the laws and regulations of the coastal state are the point of reference for determining the reasonableness of the bond. Decl. Ndiaye, J. Invoking the French version of Article 73(2), Judge Anderson wrote, “What is ‘reasonable’ is an amount suffisant/sufficient to cover penalties which could be imposed upon conviction.” Diss. Op. Anderson, J., at 5. Accordingly, in his view the bond should have taken full account of the gravity of the charges and the penalties imposable on the owners. Id.
38 Judgment, supra note 2, para. 69.
39 Id., para. 70.
40 Id., para. 74. Judge Treves, although not defending the 20 million franc figure, believed that 8 million was too low. Diss. Op. Treves, J., para. 9. Judge Wolfram agreed, and complained that the majority did not give an appropriate indication of the basis on which it assessed a bond set by national authorities. He believed that the Convention does not impose a limit on the size of fines a coastal state may exact, and argued that the Tribunal had impinged upon the enforcement rights of France under Art. 73 (1) by setting a bond that was not even half of what was ordered by the French court. Diss. Op. Wolfram, J., paras. 3, 6, 8, 16. It is not clear whether any of the judges considered whether some limitation is implied by the authorization in Article 73 (1) to take such measures “as may be necessary” to ensure compliance with laws and regulations that must themselves conform to substantive criteria of the Convention, or by the prohibition on abuse of rights in Article 300, or, indeed, as a practical if not legal matter, by the requirement that the ship and crew be released promptly on bond that must be reasonable and that, if contested, can be set quickly by an international tribunal pursuant to a new international procedure. Of the weaknesses that might be discerned among those who participated actively in the negotiation of the Convention, naiveté is not the most obvious.
41 Citing Art. 113(3) of its Rules, the Tribunal denied the applicant’s request that the bond should be posted with the Tribunal, to be delivered to France.
42 Judge Anderson did not consider it unreasonable for the French court to have ordered the security to be provided in cash. Diss. Op. Anderson, J., at 6.
43 Société Merce-Pesca SA v. Etat francais, Judgment of Mar. 21, 2000, CA Saint-Denis, ch. civ., Case No. 267/2000 (on file with authors).
44 Letters of March 23, 2000, and March 24, 2000, from the agent of Panama to the registrar of the Tribunal (on file with authors).
45 Some skeptics might argue, however, that the case was brought on behalf of Panama, not Spain, and that all the judges from the European Union dissented on the central issue of the amount of the bond. Even so, the disagreement of Judge Treves and perhaps Judge Wolfram with the dispositif seems to be over a relatively small difference in the amount. See Diss. Op. Treves.J., para. 9; Diss. Op. Wolfram, J., para. 8.
46 The International Court of Justice has pointed out that an international tribunal applies different law to different parties even when, in essence, the same claim had been made before a domestic court. See Elettronica Sicula S.P.A. (Elsi) (U.S. v. Italy), Judgment, 1989 ICJ Rep. 13, para. 59.
47 Const., Art. 55; see Administration des Douanes c. Société “Cafés Jacques Vabre,” Judgment of May 24, 1975, at 497, Cass. ch. mixte, 1975 Bull. Civ. IV, No. 4, D. 1975, JCP 1975 II; In re Nicolo, Decision of Oct. 20, 1989, D. 1990, 135, JCP III, No. 21, at 371 (1989), 25 Revue Trimestrielle de Droit Européen 786 (1989).
48 See supra note 16. This conclusion is not obvious under French law. “Méconnaît l’art. 142 la décision qui se borne à ordonner un cautionnement sans précision de son affectation.” Judgment of Oct. 13, 1988, Cass, crim., 1988 Bull. Crim., No. 257. Article 142 of the Code of Criminal Procedure provides:
When the person under investigation is required to furnish security, such security guarantees: (1). The appearance of the accused, whether charged or not, at all stages of the proceedings and for the execution of judgment, as well as, where appropriate, the execution of other obligations which have been imposed upon him. (2) . . . Payment, in the following order of: (a), reparation of damages caused by the offense and restitution . . . (b). fines. The decision that compels the defendant to furnish security shall determine the sums assigned to each of the two parts of the security.
In the latter case, “ce montant et ces delais doivent être fixés compte tenu notamment des ressources de l’inculpé.” Code of Criminal Procedure, Art. 138(11).
49 Some dissenting judges referred to the practice of the European Court of Human Rights in according a margin of appreciation to municipal authorities. See Diss. Op. Anderson, J., at 1 (national courts should be accorded abroad margin of appreciation); Diss. Op. Wolfram, J., para. 14 (the Tribunal should restrict itself to ascertaining whether the decision of the national court was unlawful under international law, or arbitrary, or made in bad faith). The analogy is not fully developed; in at least some respects, it may be inapposite. Moreover, the European Court takes care that the margin is not “excessive.” SeeLetelier v. France, 207 Eur. Ct. H.R. (ser. A) 1991.
50 Thus, for example, the Tribunal did not order that the bond be in the form of cash or a certified or bank check, notwithstanding the requirements of French law. See Code of Criminal Procedure, Arts. R.19-.23; Judgment of Apr. 23, 1991, Cass, crim., 1991 Bull. Crim., No. 191 (“le cautionnement ne peut être versé que par chèque certifié ou en espèces”).
51 See supra note 20.
52 Vice-President Nelson considered that what is reasonable and equitable must depend on the particular circumstances of the case (citing Interpretation of the Agreement of Mar. 25, 1951 Between the WHO and Egypt, Advisory Opinion, 1980 ICJ Rep. 73, para. 49 (Dec. 20)). Sep. Op. Nelson, V.P., at 2.
53 In another context, see Continental Shelf (Tunis./Libyan Arab Jamahirya), Judgment, 1982 ICJ Rep. 18, paras. 70–71 (Feb. 24): “Itis, however, the resultwhich is predominant; the principles are subordinate to the goal. . . . While it is clear that no rigid rules exist as to the exact weight to be attached to each element in the case, this is very far from being an exercise of discretion.”
54 The absence of transparency is again raised with reference to a judicial opinion, albeit this time to decry a lack of adequate reasoning in the decision of the municipal court, rather than in the Tribunal’s Judgment. See Diss. Op. Wolfrum, J., para. 16; M/V “Saiga,” supra note 31, Sep. Op. Wolfrum, V.P., para. 2, <http://www.un.org/Depts/los/ITLOS/SO_Saiga_Wolfrum.htm>. It might be noted in this regard that a reasoned judicial opinion is not necessarily the same thing as a transparent one. Consider, for example, the classically concise style of French decisions. Some courts, such as the European Court of Justice, give no indication of dissent and do not publish separate or dissenting opinions. Even courts that write voluminous majority and dissenting opinions are not immune to suspicions of a lack of candor. The rarity of complaints about the confidentiality of judicial deliberations following public proceedings suggests that transparency in the reasoning process itself is not necessarily regarded as desirable. It may be noted that Article 42 of the Rules of the Tribunal, based on Article 21 of the Rules of Court of the International Court of Justice, specifies that the deliberations of the Tribunal “shall take place in private and remain secret” and that the “records of the Tribunal’s judicial deliberations shall contain only the title or nature of the subjects or matters discussed and the results of any vote taken” and “shall not contain any details of the discussions nor the views expressed, provided however that any judge is entitled to require that a statement made by him be inserted in the records.”
