357
zone combined with the climbing on the installation could be considered as such a
case of interference.
30
In the M/V Virginia G case the International Tribunal for the Law of the Sea
(ITLOS) confirmed that “the principle of reasonableness applies generally to
enforcement measures under article 73 of the Convention”.
31
The Tribunal first
examined whether the legislation of Guinea-Bissau providing for confiscation of
vessels offering bunkering services to foreign fishing vessels in its EEZ without
authorization, was in conformity with the UNCLOS and found that it was not per se
in violation of Art. 73(1). It reached this conclusion after having determined that the
regulation of bunkering activities falls within the ambit of the exercise of the coastal
State’s sovereign rights under Art. 56 of the Convention, a finding which is important, taking into account the uncertainty around this question since the Saiga case.
32
Furthermore, the “necessary measures” the coastal State may take under Art. 73(1)
in order to ensure compliance with its laws and regulations can include the measure
of confiscation, as also evidenced by state practice.
33
At a second stage, the Tribunal
considered whether the measure was ‘necessary’ in view of the specific circumstances of the case. Although having stated that “the breach of the obligation to
obtain written authorization for bunkering and to pay the prescribed fees is a serious
violation”, it found that ‘mitigating factors’ existed in favour of the M/V Virginia G
which supported its conclusion that confiscation was not necessary either to sanction the violation committed or to deter the vessels (or their operators) from repeating it.
34
It is at this stage that the Tribunal examined the reasonableness of the
measure of confiscation on the basis of the gravity of the violation and the concrete
circumstances, to finally conclude that it “was not reasonable in light of the particular circumstances of this case”. Consequently, the Tribunal did not confine its consideration to examining the ‘necessary’ character of the measure, but extended its
reasoning to the standard of reasonableness viewed as an autonomous standard for
examining law enforcement measures. Nevertheless, it is hard to deduce from the
judgment the difference between the two criteria, all the more so that the conclusion
on the non reasonableness of the specific measure is not especially analysed
35
and
that the relevance of invoking the judgment in the Hoshinmaru case (request for
prompt release) with respect to the gravity of the violation is questionable. Besides,
in applying the criteria of necessity and reasonableness as it did, the judicial review
30 This finding would not prejudge the consideration on the proportionality of the measure. On this
case, see Noto (2016).
31 ITLOS, M/V “Virginia G” (Panama/Guinea-Bissau), Judgment, 14 April 2014, para. 270.
32 ITLOS, M/V “Saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July
1999, para. 138.
33 ITLOS,“Tomimaru” (Japan v. Russian Federation), Prompt Release, Judgment, 6 August 2007,
para. 72.
34 M/V “Virginia G”, paras 257–269.
35 The impact of the gravity of the violation and of the particular circumstances is not particularly
examined. On necessity as an element of reasonableness, see Corten (1997), pp. 520–525.
Discretionary Power of Coastal States and the Control of Its Compliance…
zone combined with the climbing on the installation could be considered as such a
case of interference.
30
In the M/V Virginia G case the International Tribunal for the Law of the Sea
(ITLOS) confirmed that “the principle of reasonableness applies generally to
enforcement measures under article 73 of the Convention”.
31
The Tribunal first
examined whether the legislation of Guinea-Bissau providing for confiscation of
vessels offering bunkering services to foreign fishing vessels in its EEZ without
authorization, was in conformity with the UNCLOS and found that it was not per se
in violation of Art. 73(1). It reached this conclusion after having determined that the
regulation of bunkering activities falls within the ambit of the exercise of the coastal
State’s sovereign rights under Art. 56 of the Convention, a finding which is important, taking into account the uncertainty around this question since the Saiga case.
32
Furthermore, the “necessary measures” the coastal State may take under Art. 73(1)
in order to ensure compliance with its laws and regulations can include the measure
of confiscation, as also evidenced by state practice.
33
At a second stage, the Tribunal
considered whether the measure was ‘necessary’ in view of the specific circumstances of the case. Although having stated that “the breach of the obligation to
obtain written authorization for bunkering and to pay the prescribed fees is a serious
violation”, it found that ‘mitigating factors’ existed in favour of the M/V Virginia G
which supported its conclusion that confiscation was not necessary either to sanction the violation committed or to deter the vessels (or their operators) from repeating it.
34
It is at this stage that the Tribunal examined the reasonableness of the
measure of confiscation on the basis of the gravity of the violation and the concrete
circumstances, to finally conclude that it “was not reasonable in light of the particular circumstances of this case”. Consequently, the Tribunal did not confine its consideration to examining the ‘necessary’ character of the measure, but extended its
reasoning to the standard of reasonableness viewed as an autonomous standard for
examining law enforcement measures. Nevertheless, it is hard to deduce from the
judgment the difference between the two criteria, all the more so that the conclusion
on the non reasonableness of the specific measure is not especially analysed
35
and
that the relevance of invoking the judgment in the Hoshinmaru case (request for
prompt release) with respect to the gravity of the violation is questionable. Besides,
in applying the criteria of necessity and reasonableness as it did, the judicial review
30 This finding would not prejudge the consideration on the proportionality of the measure. On this
case, see Noto (2016).
31 ITLOS, M/V “Virginia G” (Panama/Guinea-Bissau), Judgment, 14 April 2014, para. 270.
32 ITLOS, M/V “Saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July
1999, para. 138.
33 ITLOS,“Tomimaru” (Japan v. Russian Federation), Prompt Release, Judgment, 6 August 2007,
para. 72.
34 M/V “Virginia G”, paras 257–269.
35 The impact of the gravity of the violation and of the particular circumstances is not particularly
examined. On necessity as an element of reasonableness, see Corten (1997), pp. 520–525.
Discretionary Power of Coastal States and the Control of Its Compliance…