242
D. Tamada
arguments, the first of which was that the application became moot on 13 July
2007 when the bond was set by Russia.
104 ITLOS reaffirmed its jurisprudence
105
that a State may make an application under Article 292 ‘not only where no bond
has been set but also where it considers that the bond set by the detaining State
is unreasonable’ (emphasis added),
106 and, thus, regarded the Application as
admissible.
107
(2) Non-compliance with Article 73(2)
Under Article 292(1), an allegation of non-compliance with Article 73(2) on the
part of the Respondent is a condition for initiating the prompt release procedure. Article 73(2) provides simply that ‘[a]rrested vessels and their crews shall
be promptly released upon the posting of reasonable bond or other security’.
In relation to this provision, Japan’s argument was that the bond was not set
promptly by Russia and, even if set, was not reasonable. As to the first issue,
ITLOS stated that UNCLOS ‘does not set a precise time-limit for setting a
bond’.
108 With regard to the second issue, the main argument of Japan was
that the level of the bond was not reasonable given that the Russian method of
calculating the appropriate level included the value of the vessel on the basis of
a possible confiscation of it.
109 ITLOS clarified the following basic principle
that:
the amount of a bond should be proportionate to the gravity of the alleged offences.
Article 292 […] is designed to ensure that the coastal State, when fixing the bond,
adheres to the requirement stipulated in article 73, paragraph 2, of the Convention,
namely that the bond it fixes is reasonable in light of the assessment of relevant
factors. 110
Then, on the basis of the above principle, ITLOS stated that the level of the
bond, set by Russia, was not reasonable since, whilst a violation of the rules on
reporting may be sanctioned by Russia, a bond should not be set on the basis of
the maximum penalties nor on the basis of the confiscation of the vessel. This
means that the level of bond, insofar as including the value of the vessel, was
neither reasonable nor in conformity with Article 73(2).
111
(3) Amount and form of the bond
There was a difference of the level of bond between Japan and Russia. Japan
argued that this ought not be in excess of 8 million roubles,
112 while Russia
argued that setting the bond at 22 million roubles was appropriate. ITLOS
104 Judgment of 6 August 2007, para. 62.
105 The M/V “SAIGA” case, ITLOS Reports 1997, p. 35, para. 77.
106 Judgment of 6 August 2007, para. 65.
107 Judgment of 6 August 2007, para. 69.
108 Judgment of 6 August 2007, para. 80.
109 Judgment of 6 August 2007, para. 84.
110 Judgment of 6 August 2007, para. 88.
111 Judgment of 6 August 2007, para. 94.
112 Judgment of 6 August 2007, para. 91.
D. Tamada
arguments, the first of which was that the application became moot on 13 July
2007 when the bond was set by Russia.
104 ITLOS reaffirmed its jurisprudence
105
that a State may make an application under Article 292 ‘not only where no bond
has been set but also where it considers that the bond set by the detaining State
is unreasonable’ (emphasis added),
106 and, thus, regarded the Application as
admissible.
107
(2) Non-compliance with Article 73(2)
Under Article 292(1), an allegation of non-compliance with Article 73(2) on the
part of the Respondent is a condition for initiating the prompt release procedure. Article 73(2) provides simply that ‘[a]rrested vessels and their crews shall
be promptly released upon the posting of reasonable bond or other security’.
In relation to this provision, Japan’s argument was that the bond was not set
promptly by Russia and, even if set, was not reasonable. As to the first issue,
ITLOS stated that UNCLOS ‘does not set a precise time-limit for setting a
bond’.
108 With regard to the second issue, the main argument of Japan was
that the level of the bond was not reasonable given that the Russian method of
calculating the appropriate level included the value of the vessel on the basis of
a possible confiscation of it.
109 ITLOS clarified the following basic principle
that:
the amount of a bond should be proportionate to the gravity of the alleged offences.
Article 292 […] is designed to ensure that the coastal State, when fixing the bond,
adheres to the requirement stipulated in article 73, paragraph 2, of the Convention,
namely that the bond it fixes is reasonable in light of the assessment of relevant
factors. 110
Then, on the basis of the above principle, ITLOS stated that the level of the
bond, set by Russia, was not reasonable since, whilst a violation of the rules on
reporting may be sanctioned by Russia, a bond should not be set on the basis of
the maximum penalties nor on the basis of the confiscation of the vessel. This
means that the level of bond, insofar as including the value of the vessel, was
neither reasonable nor in conformity with Article 73(2).
111
(3) Amount and form of the bond
There was a difference of the level of bond between Japan and Russia. Japan
argued that this ought not be in excess of 8 million roubles,
112 while Russia
argued that setting the bond at 22 million roubles was appropriate. ITLOS
104 Judgment of 6 August 2007, para. 62.
105 The M/V “SAIGA” case, ITLOS Reports 1997, p. 35, para. 77.
106 Judgment of 6 August 2007, para. 65.
107 Judgment of 6 August 2007, para. 69.
108 Judgment of 6 August 2007, para. 80.
109 Judgment of 6 August 2007, para. 84.
110 Judgment of 6 August 2007, para. 88.
111 Judgment of 6 August 2007, para. 94.
112 Judgment of 6 August 2007, para. 91.