360
deference exercised by international courts or tribunals with respect to domestic
decisions, in examining whether the detaining State has complied with its obligation
under Art. 73(2) to release the vessel upon the posting of a reasonable bond and, in
particular, in considering the reasonableness of the bond in prompt release proceedings under Art. 292. The need for judicial restraint was stressed in the Camouco case
by Judges Anderson and Wolfrum in their dissenting opinions; according to the latter, the determination by the Tribunal of a bond “too low by far” curtailed the
enforcement rights of the coastal State under Art. 73(1) and did not constitute a
safeguard for the French authorities to collect the fines, since the Tribunal proceeded to fixing such a bond without basing its calculation on the approach of the
coastal State.
45
Besides, as Judge Cot observed in his separate opinion in the Volga
case, “the court’s control over what constitutes a “reasonable bond” comes under
what may be referred to as “minimum control” in certain legal systems”.
46
Thus,
Arts. 73(2) and 292 should be read in the context of Art. 73, since the setting of the
bond by the national authorities is a manifestation of the exercise of the coastal
State’s discretion to establish its own enforcement measures, including the system
of detention and release of vessels and its implementation in the particular case.
It would be interesting at this stage to briefly observe what the judicial deference
consists of and how its exercise is conditioned by the special nature of the prompt
release proceedings.
47
In order to avoid substituting its own decision for the discretion of the coastal State, the international court or tribunal considers the reasonableness of the bond by reference to the domestic legislation,
48
taking also into account
the enforcement context and policy of the coastal State so as to avoid “unnecessarily
impinging” upon the enforcement rights. The cognizance of the factual background
(including the penalties imposed and the specific problems of ensuring effective law
enforcement) is necessary in balancing the interests of the flag State and of the
coastal State and in examining whether a manifest disproportion exists between the
facts and the decision on the bond by the national authorities.
49
Evaluating the facts
and assessing evidence, instead of treating “laws and decisions as facts”, carries the
45 “Camouco”, Dissenting opinion of Judge Wolfrum, paras 11, 13 and 15–17: “These discretionary powers or margin of appreciation on the side of the coastal State limit the powers of the
Tribunal on deciding whether a bond set by the national authorities was reasonable or not. It is not
for the Tribunal to establish a system of its own which does not take into account the enforcement
policy by the coastal State in question”. Dissenting opinion of Judge Anderson, ITLOS Reports
2000, pp. 50 and 58.
46 “[T]his control of legality is exercised in particular with regard to errors in law”, “Volga”,
Separate opinion of Judge Cot, para. 25.
47 “[T]he power given this Tribunal, under article 292…constitutes to a certain extent ‘an interference’ with the coastal State’s judicial authorities”,“Monte Confurco”, Separate opinion of VicePresident Nelson, ITLOS Reports 2000, p. 124. It must be interpreted “with caution and restraint”,
with regard to specific provisions (73, 226) of the UNCLOS, M/V “Saiga”, Prompt Release,
Dissenting opinion of Vice-President Wolfrum and Judge Yamamoto, para. 16.
48 Trevisanut (2017), pp. 305–306.
49 ITLOS, “Juno Trader” (St. Vincent and the Grenadines v. Guinea-Bissau), Prompt Release,
Judgment, 18 December 2004, para. 89.
E. Scalieri
deference exercised by international courts or tribunals with respect to domestic
decisions, in examining whether the detaining State has complied with its obligation
under Art. 73(2) to release the vessel upon the posting of a reasonable bond and, in
particular, in considering the reasonableness of the bond in prompt release proceedings under Art. 292. The need for judicial restraint was stressed in the Camouco case
by Judges Anderson and Wolfrum in their dissenting opinions; according to the latter, the determination by the Tribunal of a bond “too low by far” curtailed the
enforcement rights of the coastal State under Art. 73(1) and did not constitute a
safeguard for the French authorities to collect the fines, since the Tribunal proceeded to fixing such a bond without basing its calculation on the approach of the
coastal State.
45
Besides, as Judge Cot observed in his separate opinion in the Volga
case, “the court’s control over what constitutes a “reasonable bond” comes under
what may be referred to as “minimum control” in certain legal systems”.
46
Thus,
Arts. 73(2) and 292 should be read in the context of Art. 73, since the setting of the
bond by the national authorities is a manifestation of the exercise of the coastal
State’s discretion to establish its own enforcement measures, including the system
of detention and release of vessels and its implementation in the particular case.
It would be interesting at this stage to briefly observe what the judicial deference
consists of and how its exercise is conditioned by the special nature of the prompt
release proceedings.
47
In order to avoid substituting its own decision for the discretion of the coastal State, the international court or tribunal considers the reasonableness of the bond by reference to the domestic legislation,
48
taking also into account
the enforcement context and policy of the coastal State so as to avoid “unnecessarily
impinging” upon the enforcement rights. The cognizance of the factual background
(including the penalties imposed and the specific problems of ensuring effective law
enforcement) is necessary in balancing the interests of the flag State and of the
coastal State and in examining whether a manifest disproportion exists between the
facts and the decision on the bond by the national authorities.
49
Evaluating the facts
and assessing evidence, instead of treating “laws and decisions as facts”, carries the
45 “Camouco”, Dissenting opinion of Judge Wolfrum, paras 11, 13 and 15–17: “These discretionary powers or margin of appreciation on the side of the coastal State limit the powers of the
Tribunal on deciding whether a bond set by the national authorities was reasonable or not. It is not
for the Tribunal to establish a system of its own which does not take into account the enforcement
policy by the coastal State in question”. Dissenting opinion of Judge Anderson, ITLOS Reports
2000, pp. 50 and 58.
46 “[T]his control of legality is exercised in particular with regard to errors in law”, “Volga”,
Separate opinion of Judge Cot, para. 25.
47 “[T]he power given this Tribunal, under article 292…constitutes to a certain extent ‘an interference’ with the coastal State’s judicial authorities”,“Monte Confurco”, Separate opinion of VicePresident Nelson, ITLOS Reports 2000, p. 124. It must be interpreted “with caution and restraint”,
with regard to specific provisions (73, 226) of the UNCLOS, M/V “Saiga”, Prompt Release,
Dissenting opinion of Vice-President Wolfrum and Judge Yamamoto, para. 16.
48 Trevisanut (2017), pp. 305–306.
49 ITLOS, “Juno Trader” (St. Vincent and the Grenadines v. Guinea-Bissau), Prompt Release,
Judgment, 18 December 2004, para. 89.
E. Scalieri