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Published online by Cambridge University Press: 27 February 2017
1 See Tomimaru (Japan v. Russ.), 46 I.L.M. 1185 (2007) [hereinafter Judgment]. Japan filed a second application on the same day, July 6, 2007, against the Russian Federation for the prompt release of the fishing vessel Hoshinmaru. The judgment in the Hoshinmaru case was also handed down on August 6, 2007. These are different cases on the Tribunal's list (Hoshinmaru is Case No. 14 and Tomimaru is Case No. 15), and the facts and outcomes were quite different. The Tribunal ruled that merely setting a bond for the release of the Hoshinmaru did not render Japan's application without object in the Hoshinmaru case. The Tribunal proceeded to determine the amount and form of the bond for the release of the Hoshinmaru. The judgment, declarations, separate opinions, written pleadings, transcripts of oral proceedings, orders, and press releases for these and other cases are available at <www.itlos.org>.
2 See M/V Saiga (Saint Vincent and the Grenadines v. Guinea); Camouco (Panama v. France); Monte Confurco (Seychelles v. France); Grand Prince (Belize v. France); Volga (Russian Federation v. Australia); Juno Trader (Saint Vincent and the Grenadines v. Guinea-Bissau); Hoshinmaru (Japan v. Russian Federation). Chaisiri Reefer 2 (Panama v. Yemen) was removed from the Tribunal's list following agreement between the parties and before the Tribunal received the Respondent's statement or heard oral argument. These prompt release cases have made up the bulk of the Tribunal's case load since it opened for business in the late-1990s. The Tribunal has entered fifteen cases on its list of cases as of December 2007.
3 Judgment, supra note 1, para. 82.
4 To date, ITLOS is the only forum to have considered a prompt release case. However, Article 292 provides that “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 International Tribunal for the Law of the Sea, unless the parties otherwise agree.'’ UNCLOS, Art. 292( 1).
5 The Tribunal has avoided this issue in past cases. In Grand Prince, here a confiscation ordered by the detaining State's criminal court was in the process of being appealed, the Tribunal found that it had no jurisdiction for reasons unrelated to the confiscation. See Grand Prince, supra note 2. In Juno Trader, a confiscation ordered by Guinea-Bissau's Inter-ministerial Maritime Control Commission had been suspended by the Regional Court in Bissau prior to the oral hearings before the Tribunal. Juno Trader, supra note 2, para. 62.
6 M/V Saiga, supra note 2, para. 50.
7 The Tribunal considered the relationship between prompt release proceedings and proceedings before domestic courts in light of 292(3) and 292(4), and concluded that “while the States which are parties to the proceedings before the Tribunal are bound by the judgment adopted by it as far as the release of the vessel and the bond or other security are concerned, their domestic courts, in considering the merits of the case, are not bound by any findings of fact or law that the Tribunal may have made in order to reach its conclusions.” M/V Saiga, supra note 2, para. 49.
8 See Camouco, supra note 2, paras. 57-58.
9 Camouco, supra note 2, para. 58.
10 The Tribunal's review of the facts related to the arrest is at Judgment, supra note 1, paras. 22-25.
11 Judgment, supra note 1, para. 41.
12 The Tribunal's review of the facts related to domestic proceedings is at Judgment, supra note 1, paras. 26-47. In addition to the administrative proceedings reported in this note criminal proceedings were instituted on November 8, 2006 against the Master of the Tomimaru in which the vessel was considered material evidence. In early December the Inter-district Prosecutor's Office for Nature Protection set a bond for release of the vessel. The bond, which only related to the criminal proceedings, was not paid.
13 Judgment, supra note 1, para. 44.
14 Judgment, supra note 1, para. 79. In the sister Hoshinmaru case, the Tribunal “acknowledge[] that events subsequent to the filing of an application may render an application without object.” Hoshinmaru, supra note, para. 64 citing Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, p. 253, at p. 272, para. 62; Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, ICJ Rep. 1988, p. 69, at p. 95, para. 66; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional Measures, Order of 8 December 2000, ICJ Rep. 2000, p. 182, at p. 197, para. 55.
15 Judgment, supra note 1, para. 82.
16 Judgment, supra note 1, para. 76.
17 Judgment, supra note 1, para. 78. The Tribunal cautioned detaining states that a decision to confiscate “should not be taken in such a way as to prevent the shipowner from having recourse to available domestic judicial remedies, or as to prevent the flag State from resorting to the prompt release procedures set forth in the Convention; nor should it be taken through proceedings inconsistent with international standards of due process of law. In particular, a confiscation decided in unjustified haste would jeopardize the operation of article 292 of the Convention.” Judgment, supra note 1, para. 76.
18 Judgment, supra note 1, para. 74 citing Monte Confurco Case (ITLOS Reports 2000, p. 86, at p. 108, para. 70).
19 The Tribunal has ruled on eight prompt release cases, all but one of which involved domestic criminal or civil proceedings, or both. In M/V Saiga, the Respondent had not initiated domestic proceedings. See M/V Saiga, supra note 2.
* This text was reproduced and reformatted from the text appearing at the website: (visited December 18, 2007) <http://www.itlos.org/start2_en.html 1>