12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
239
therefore recognize that there has been no judgment on the merit of the case regarding
the appropriateness of Japan’s own EFP (experimental fishing program).
3. We also recognize that the present award urges self-restraint upon the parties, promotion
of negotiations, and the utilization of an independent third party for that purpose.
4. Japan will continue to make efforts to achieve the long-term aim of conserving and
managing the SBT resources, as well as restoring the functions of the Commission for
the Conservation of Southern Bluefin Tuna (CCSBT), and establishing a comprehensive
SBT conservation regime which includes such third parties as the R.O.K. [Republic of
Korea] or Taiwan (emphasis added).
This statement, especially points 3 and 4, clearly demonstrates Japan’s moderate
attitude towards the award. This is because, as was pointed out by the tribunal, Japan
had already expressed its intention during proceedings, to renegotiate with Australia
and New Zealand, and to accept arbitration under CCSBT.
89
12.5 The “Hoshinmaru” Case: Prompt Release
12.5.1 Procedure and Facts
Japan has experienced two cases of prompt release : the “Hoshinmaru” case
90 and the
“Tomimaru” case,
91 which stemmed from different facts at different times. However,
two cases were filed by Japan and examined by ITLOS simultaneously.
92
The Hoshinmaru is a fishing vessel flying the flag of Japan. The 17 crew members
are of Japanese nationality. On 1 June 2007, the Hoshinmaru was fishing, with a
fishing licence issued by Russia, in the exclusive economic zone (EEZ) of Russia,
and was subsequently ordered to stop by a Russian patrol boat and boarded by an
inspection team.
93 For reasons of concealment, misrepresentation, and the falsification of the species composition of the fish products, the Hoshinmaru was detained
by Russia.
94 After the Hoshinmaru was escorted to a Russian port,
95 administrative
89 Award of 4 August 2000, para. 68.
90 “Hoshinmaru” (Japan v. Russian Federation), List of cases: No.14, Prompt Release, Judgment
of 6 August 2007, ITLOS Reports 2005–2007, p. 18.
91 “Tomimaru” (Japan v. Russian Federation), List of cases: No.15, Prompt Release, Judgment of
6 August 2007, ITLOS Reports 2005–2007, p. 74.
92 As to the reactions of the Japanese Government to the two incidents, before and after the ITLOS
proceedings, see Junichi Hosono and Junko Iwaishi (2007).
93 Judgment of 6 August 2007, para. 29. The Russian organ in charge had been the State Sea
Inspection of the Northeast Border Coast Guard Directorate of the Federal Security Service of the
Russian Federation (‘State Sea Inspection’).
94 Judgment of 6 August 2007, para. 31.
95 When ITLOS rendered the Judgment, on 6 August 2007, the Hoshinmaru, its Master, and its
crew remained in the port of Petropavlovsk-Kamchatskii. Judgment of 6 August 2007, para. 55.
239
therefore recognize that there has been no judgment on the merit of the case regarding
the appropriateness of Japan’s own EFP (experimental fishing program).
3. We also recognize that the present award urges self-restraint upon the parties, promotion
of negotiations, and the utilization of an independent third party for that purpose.
4. Japan will continue to make efforts to achieve the long-term aim of conserving and
managing the SBT resources, as well as restoring the functions of the Commission for
the Conservation of Southern Bluefin Tuna (CCSBT), and establishing a comprehensive
SBT conservation regime which includes such third parties as the R.O.K. [Republic of
Korea] or Taiwan (emphasis added).
This statement, especially points 3 and 4, clearly demonstrates Japan’s moderate
attitude towards the award. This is because, as was pointed out by the tribunal, Japan
had already expressed its intention during proceedings, to renegotiate with Australia
and New Zealand, and to accept arbitration under CCSBT.
89
12.5 The “Hoshinmaru” Case: Prompt Release
12.5.1 Procedure and Facts
Japan has experienced two cases of prompt release : the “Hoshinmaru” case
90 and the
“Tomimaru” case,
91 which stemmed from different facts at different times. However,
two cases were filed by Japan and examined by ITLOS simultaneously.
92
The Hoshinmaru is a fishing vessel flying the flag of Japan. The 17 crew members
are of Japanese nationality. On 1 June 2007, the Hoshinmaru was fishing, with a
fishing licence issued by Russia, in the exclusive economic zone (EEZ) of Russia,
and was subsequently ordered to stop by a Russian patrol boat and boarded by an
inspection team.
93 For reasons of concealment, misrepresentation, and the falsification of the species composition of the fish products, the Hoshinmaru was detained
by Russia.
94 After the Hoshinmaru was escorted to a Russian port,
95 administrative
89 Award of 4 August 2000, para. 68.
90 “Hoshinmaru” (Japan v. Russian Federation), List of cases: No.14, Prompt Release, Judgment
of 6 August 2007, ITLOS Reports 2005–2007, p. 18.
91 “Tomimaru” (Japan v. Russian Federation), List of cases: No.15, Prompt Release, Judgment of
6 August 2007, ITLOS Reports 2005–2007, p. 74.
92 As to the reactions of the Japanese Government to the two incidents, before and after the ITLOS
proceedings, see Junichi Hosono and Junko Iwaishi (2007).
93 Judgment of 6 August 2007, para. 29. The Russian organ in charge had been the State Sea
Inspection of the Northeast Border Coast Guard Directorate of the Federal Security Service of the
Russian Federation (‘State Sea Inspection’).
94 Judgment of 6 August 2007, para. 31.
95 When ITLOS rendered the Judgment, on 6 August 2007, the Hoshinmaru, its Master, and its
crew remained in the port of Petropavlovsk-Kamchatskii. Judgment of 6 August 2007, para. 55.