358
touched upon the substance of the coastal State’s discretionary powers, an issue
which will be subsequently examined.
Another criterion invoked in state practice and in theory as a limitation to the
exercise of the discretion is the prohibition of the abuse of right.
36
Case law reflects
a cautioned attitude regarding this notion, which, according to H. Lauterpacht,
“must be wielded with studied restraint”.
37
2.2.2 The Standard of Reasonableness in the Provisions of the UNCLOS
The insertion of this qualification in the provisions aims at accommodating rights
and interests, by attaching the condition of reasonableness to the exercise of a competence or measure of the coastal State. Such a provision is the reference to the
“reasonable bond” upon the posting of which, according to Art. 73(2), the coastal
State must promptly release the vessel and its crew.
38
The rich jurisprudence of
ITLOS on prompt release pursuant to Art. 292 clarifies the elements which are relevant for assessing the reasonableness of the bond or other financial security, such
as the gravity of the alleged offenses, the sanctions imposed by the detaining State,
the value of the vessels and the cargo detained, the amount and form of the bond.
39
In this context, the interest resides in the extent of the judicial review with respect
to the coastal State’s decision setting the bond. In the first place, a significant limitation of the jurisdictional power of the international courts or tribunals is provided in
Art. 292(3) according to which they “shall deal only with the question of release
without prejudice to the merits of any case before the appropriate domestic forum
(…)”, which was particularly illustrated in the Tomimaru case.
40
It has been often
underlined in the case law of ITLOS that “[the Tribunal] is not an appellate forum
against a decision of a national court”.
41
Secondly, the margin of appreciation of the
coastal State in deciding its enforcement measures in accordance with Art. 73
impacts on the power of the tribunal, as will be referred to below.
36 In the M/V “Virginia G” Panama invoked it with respect to the exercise of sovereign rights under
Art. 73(1) (para. 261). ITLOS applied the standard of reasonableness and rejected the argument
regarding the violation of Art. 300 of the UNCLOS that Panama invoked without making reference
to specific obligations and rights under the Convention (ibidem, para. 400).
37 Lauterpacht (1958), p. 162.
38 “The notion of reasonableness is here used to curb the arbitrary exercise of the discretionary
power granted to coastal States”, ITLOS, “Monte Confurco” (Seychelles v. France), Prompt
Release, Judgment, 18 December 2000, Separate opinion of Vice-President Nelson, ITLOS
Reports 2000, p. 124.
39 ITLOS, “Camouco” (Panama v. France), Prompt Release, Judgment, 7 February 2000, paras
66–67. Also, ITLOS, M/V “Saiga”, Prompt Release, Judgment, 4 December 1997, para. 82;“Monte
Confurco”, Judgment, para. 72: “The balance of interests emerging from articles 73(2) and 292
provides the guiding criterion for the Tribunal in its assessment of the reasonableness of the bond”.
40 “Tomimaru”, para. 80.
41 “Monte Confurco”, Judgment, paras 72–74 and 86; “Camouco”, Judgment, para. 58.
E. Scalieri
touched upon the substance of the coastal State’s discretionary powers, an issue
which will be subsequently examined.
Another criterion invoked in state practice and in theory as a limitation to the
exercise of the discretion is the prohibition of the abuse of right.
36
Case law reflects
a cautioned attitude regarding this notion, which, according to H. Lauterpacht,
“must be wielded with studied restraint”.
37
2.2.2 The Standard of Reasonableness in the Provisions of the UNCLOS
The insertion of this qualification in the provisions aims at accommodating rights
and interests, by attaching the condition of reasonableness to the exercise of a competence or measure of the coastal State. Such a provision is the reference to the
“reasonable bond” upon the posting of which, according to Art. 73(2), the coastal
State must promptly release the vessel and its crew.
38
The rich jurisprudence of
ITLOS on prompt release pursuant to Art. 292 clarifies the elements which are relevant for assessing the reasonableness of the bond or other financial security, such
as the gravity of the alleged offenses, the sanctions imposed by the detaining State,
the value of the vessels and the cargo detained, the amount and form of the bond.
39
In this context, the interest resides in the extent of the judicial review with respect
to the coastal State’s decision setting the bond. In the first place, a significant limitation of the jurisdictional power of the international courts or tribunals is provided in
Art. 292(3) according to which they “shall deal only with the question of release
without prejudice to the merits of any case before the appropriate domestic forum
(…)”, which was particularly illustrated in the Tomimaru case.
40
It has been often
underlined in the case law of ITLOS that “[the Tribunal] is not an appellate forum
against a decision of a national court”.
41
Secondly, the margin of appreciation of the
coastal State in deciding its enforcement measures in accordance with Art. 73
impacts on the power of the tribunal, as will be referred to below.
36 In the M/V “Virginia G” Panama invoked it with respect to the exercise of sovereign rights under
Art. 73(1) (para. 261). ITLOS applied the standard of reasonableness and rejected the argument
regarding the violation of Art. 300 of the UNCLOS that Panama invoked without making reference
to specific obligations and rights under the Convention (ibidem, para. 400).
37 Lauterpacht (1958), p. 162.
38 “The notion of reasonableness is here used to curb the arbitrary exercise of the discretionary
power granted to coastal States”, ITLOS, “Monte Confurco” (Seychelles v. France), Prompt
Release, Judgment, 18 December 2000, Separate opinion of Vice-President Nelson, ITLOS
Reports 2000, p. 124.
39 ITLOS, “Camouco” (Panama v. France), Prompt Release, Judgment, 7 February 2000, paras
66–67. Also, ITLOS, M/V “Saiga”, Prompt Release, Judgment, 4 December 1997, para. 82;“Monte
Confurco”, Judgment, para. 72: “The balance of interests emerging from articles 73(2) and 292
provides the guiding criterion for the Tribunal in its assessment of the reasonableness of the bond”.
40 “Tomimaru”, para. 80.
41 “Monte Confurco”, Judgment, paras 72–74 and 86; “Camouco”, Judgment, para. 58.
E. Scalieri