‘Reasonableness’ in the Law of the Sea: The Prompt Release of the Volga

Abstract

The jurisdiction of the International Tribunal for the Law of the Sea to hear applications for the prompt release of vessels and crew was recently invoked by the Russian Federation against Australia in the Volga case. In determining whether the bonding arrangements set by Australia were ‘reasonable’ under Article 73(2) of UNCLOS, the Tribunal clarified several issues regarding prompt release applications, and most significantly, held that non-financial conditions and ‘good behaviour bonds’ were not permissible. In rendering its decision, the Tribunal adhered to the ‘guiding criterion’ of balancing the interests of the flag state and coastal state in determining the reasonableness of the bond. It is submitted that this test is inappropriate, and that this decision will create difficulties for coastal states seeking to control illegal fishing.