361
risk for the international court or tribunal of acting as an appellate body.
50
The challenge is even greater in cases where the international tribunal, after having considered the request well-founded, has to determine itself the bond when the authorities
of the coastal State have omitted to do so or have rejected the request for release.
51
Giving effect to the “self-contained” nature of the prompt release proceedings
requires that considerations strictly related to the question of release be taken on
board, as in the Volga case,
52
while safeguarding the interests of both States. Finally,
elementary considerations of humanity and due process of law, as incorporated in
Art. 73(4), have been deemed relevant to the prompt release procedure and to the
determination of the reasonable bond in the Juno Trader case.
53
When the object of the review is the lawfulness of the enforcement measures
taken by the coastal State under Art. 73(1), the judicial control—being a control of
legality—consists of examining whether the State has acted within the limits of its
discretion.
54
In this respect the abovementioned judgment of ITLOS in the M/V
Virginia G case concerning the confiscation by the authorities of Guinea-Bissau of
the bunkering vessel gave rise to certain dissenting opinions. These opinions underline that the confiscation of the M/V Virginia G fell within Guinea-Bissau’s
discretion—flowing from its sovereign rights as provided for in Arts. 56 and 73(1)—
to regulate the conservation and management of living resources in its EEZ and
identify the most suitable and effective measures for sanctioning a violation of its
laws in the particular circumstances of the case.
55
The Tribunal qualifies the information communicated by the agent of the fishing vessels regarding the bunkering
services, as well as the fact that the fishing vessels were only fined but not confiscated, as “mitigating factors” which should have been taken into account by the
coastal State; it concludes that the failure to obtain written authorization was rather
the consequence of a misinterpretation of the correspondence than an intentional
violation. Hence, the judicial control extended even over considerations falling
within the coastal State’s margin of discretion, since they touched upon the reasons
50 In “Monte Confurco”, the Tribunal affirmed that it is “not precluded from examining the facts
and circumstances of the case, to the extent necessary” and that there is a limitation on the extent
to which it could take cognizance of the facts deriving from the requirement to conduct the proceeding without delay (Judgment, para. 74). These considerations have been the object of dissenting opinions (ibidem, Dissenting opinion of Judge Anderson, ITLOS Reports 2000, p. 130;
Dissenting opinion of Judge Jesus, paras 25–28), especially regarding the evaluation of the
assumption applied by the domestic court.
51 The Tribunal rejected the request of the applicant that no bond be posted, M/V “Saiga”, Prompt
Release, Judgment, paras 76–77; “Camouco”, Judgment, para. 63.
52 Considerations not relevant to the procedure were put aside, “Volga”, Judgment, para. 83. The
circumstances of the seizure were also considered not relevant to the proceedings for prompt
release in “Juno Trader”, Judgment, para. 95.
53 According to the judgement, Art. 73(2) “must be read in the context of article 73 as a whole”,
“Juno Trader”, Judgment, para. 77; see ibidem, Separate opinion of Judge Treves, paras 4–5.
54 The limit to this discretion is provided in Art. 73(3) forbidding the sanction of imprisonment.
55 “[A]ll these legislative and executive sovereign measures benefit from the presumption of legal
regularity”, M/V “Virginia G”, Dissenting opinion of Judge ad hoc Sérvulo Correia, para. 16.
Discretionary Power of Coastal States and the Control of Its Compliance…
risk for the international court or tribunal of acting as an appellate body.
50
The challenge is even greater in cases where the international tribunal, after having considered the request well-founded, has to determine itself the bond when the authorities
of the coastal State have omitted to do so or have rejected the request for release.
51
Giving effect to the “self-contained” nature of the prompt release proceedings
requires that considerations strictly related to the question of release be taken on
board, as in the Volga case,
52
while safeguarding the interests of both States. Finally,
elementary considerations of humanity and due process of law, as incorporated in
Art. 73(4), have been deemed relevant to the prompt release procedure and to the
determination of the reasonable bond in the Juno Trader case.
53
When the object of the review is the lawfulness of the enforcement measures
taken by the coastal State under Art. 73(1), the judicial control—being a control of
legality—consists of examining whether the State has acted within the limits of its
discretion.
54
In this respect the abovementioned judgment of ITLOS in the M/V
Virginia G case concerning the confiscation by the authorities of Guinea-Bissau of
the bunkering vessel gave rise to certain dissenting opinions. These opinions underline that the confiscation of the M/V Virginia G fell within Guinea-Bissau’s
discretion—flowing from its sovereign rights as provided for in Arts. 56 and 73(1)—
to regulate the conservation and management of living resources in its EEZ and
identify the most suitable and effective measures for sanctioning a violation of its
laws in the particular circumstances of the case.
55
The Tribunal qualifies the information communicated by the agent of the fishing vessels regarding the bunkering
services, as well as the fact that the fishing vessels were only fined but not confiscated, as “mitigating factors” which should have been taken into account by the
coastal State; it concludes that the failure to obtain written authorization was rather
the consequence of a misinterpretation of the correspondence than an intentional
violation. Hence, the judicial control extended even over considerations falling
within the coastal State’s margin of discretion, since they touched upon the reasons
50 In “Monte Confurco”, the Tribunal affirmed that it is “not precluded from examining the facts
and circumstances of the case, to the extent necessary” and that there is a limitation on the extent
to which it could take cognizance of the facts deriving from the requirement to conduct the proceeding without delay (Judgment, para. 74). These considerations have been the object of dissenting opinions (ibidem, Dissenting opinion of Judge Anderson, ITLOS Reports 2000, p. 130;
Dissenting opinion of Judge Jesus, paras 25–28), especially regarding the evaluation of the
assumption applied by the domestic court.
51 The Tribunal rejected the request of the applicant that no bond be posted, M/V “Saiga”, Prompt
Release, Judgment, paras 76–77; “Camouco”, Judgment, para. 63.
52 Considerations not relevant to the procedure were put aside, “Volga”, Judgment, para. 83. The
circumstances of the seizure were also considered not relevant to the proceedings for prompt
release in “Juno Trader”, Judgment, para. 95.
53 According to the judgement, Art. 73(2) “must be read in the context of article 73 as a whole”,
“Juno Trader”, Judgment, para. 77; see ibidem, Separate opinion of Judge Treves, paras 4–5.
54 The limit to this discretion is provided in Art. 73(3) forbidding the sanction of imprisonment.
55 “[A]ll these legislative and executive sovereign measures benefit from the presumption of legal
regularity”, M/V “Virginia G”, Dissenting opinion of Judge ad hoc Sérvulo Correia, para. 16.
Discretionary Power of Coastal States and the Control of Its Compliance…