12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
241
intends to continue instructing thoroughly the fishermen to abide by the relevant laws
and regulations (emphasis added).
It is important to point out that the intention of Japan had only been to secure
the release of the vessels and their crew; not to raise objections to the enforcement
actions of the Russian authorities. This means that Japan correctly understands the
purely procedural character of prompt release, leaving untouched the substantive
issues of detention and arrest.
Second, before ITLOS , Japan presented the following final submissions:
101
The Applicant requests the ITLOS
(a) to declare that the Tribunal has jurisdiction under Article 292 of the UNCLOS to hear
the application […];
(b) to declare that the application is admissible, that the allegation of the Applicant is wellfounded, and that the Respondent has breached its obligations under Article 73(2) of
the Convention; and.
(c) to order the Respondent to release the vessel of the Hoshinmaru [and the crew] upon
such terms and conditions as the Tribunal shall consider reasonable.
With regard to the fact that Russia set the bond to be paid by the Applicant, Japan
claimed that the bond had been ‘belatedly set for the release of the 88th Hoshinmaru;
but Japan does not consider the amount set to be reasonable’, and, consequently, Japan
did not allege that Russia had completely failed to set a bond.
102
12.5.3 Judgment of ITLOS
(1) Jurisdiction and admissibility
Article 292(1) of UNCLOS, as the legal basis of the prompt release procedure,
provides that:
Where the authorities of a State Party have detained a vessel flying the flag of another
State Party and it is alleged that the detaining State has not complied with the provisions
of this Convention for the prompt release of the vessel or its crew upon the posting of
a reasonable bond or other financial security, the question of release from detention
may be submitted to any court or tribunal agreed upon by the parties or, failing such
agreement within 10 days from the time of detention, to a court or tribunal accepted by
the detaining State under article 287 or to the International Tribunal for the Law of the
Sea , unless the parties otherwise agree (emphasis added).
Perhaps rather hastily, ITLOS found that it had jurisdiction under Article 292
of UNCLOS.
103 As to the admissibility of the application, Russia raised two
101 Judgment of 6 August 2007, para. 25.
102 Judgment of 6 August 2007, para. 23.
103 Judgment of 6 August 2007, para. 59. It seems that there was no objection to jurisdiction from
Russia.
241
intends to continue instructing thoroughly the fishermen to abide by the relevant laws
and regulations (emphasis added).
It is important to point out that the intention of Japan had only been to secure
the release of the vessels and their crew; not to raise objections to the enforcement
actions of the Russian authorities. This means that Japan correctly understands the
purely procedural character of prompt release, leaving untouched the substantive
issues of detention and arrest.
Second, before ITLOS , Japan presented the following final submissions:
101
The Applicant requests the ITLOS
(a) to declare that the Tribunal has jurisdiction under Article 292 of the UNCLOS to hear
the application […];
(b) to declare that the application is admissible, that the allegation of the Applicant is wellfounded, and that the Respondent has breached its obligations under Article 73(2) of
the Convention; and.
(c) to order the Respondent to release the vessel of the Hoshinmaru [and the crew] upon
such terms and conditions as the Tribunal shall consider reasonable.
With regard to the fact that Russia set the bond to be paid by the Applicant, Japan
claimed that the bond had been ‘belatedly set for the release of the 88th Hoshinmaru;
but Japan does not consider the amount set to be reasonable’, and, consequently, Japan
did not allege that Russia had completely failed to set a bond.
102
12.5.3 Judgment of ITLOS
(1) Jurisdiction and admissibility
Article 292(1) of UNCLOS, as the legal basis of the prompt release procedure,
provides that:
Where the authorities of a State Party have detained a vessel flying the flag of another
State Party and it is alleged that the detaining State has not complied with the provisions
of this Convention for the prompt release of the vessel or its crew upon the posting of
a reasonable bond or other financial security, the question of release from detention
may be submitted to any court or tribunal agreed upon by the parties or, failing such
agreement within 10 days from the time of detention, to a court or tribunal accepted by
the detaining State under article 287 or to the International Tribunal for the Law of the
Sea , unless the parties otherwise agree (emphasis added).
Perhaps rather hastily, ITLOS found that it had jurisdiction under Article 292
of UNCLOS.
103 As to the admissibility of the application, Russia raised two
101 Judgment of 6 August 2007, para. 25.
102 Judgment of 6 August 2007, para. 23.
103 Judgment of 6 August 2007, para. 59. It seems that there was no objection to jurisdiction from
Russia.