244
D. Tamada
been completed and the decision of the confiscation of the vessel had become final. On
the other hand, it has a great significance that the judgment pointed out, in general terms,
that the confiscation decided in unjustified haste contradicted the object and purpose of
the prompt release procedures provided in the UNCLOS, and Japan appreciates this
view of the judgment. The judgment, at the same time, pointed out that the flag State
had to initiate the prompt release procedure in a timely manner.
4. Japan hopes that the release of the vessel and the crew of the 88th Hoshinmaru will
be realized promptly based on the judgment. Japan also hopes that this judgment
will become a stimulus for Russia to improve its domestic regulations on the seizure
and release of foreign vessels and their implementation, which would prevent the
reoccurrence of long detention of Japanese fishing vessels in the future (emphasis added).
First, Japan gained from this outcome, in the sense that ITLOS found a breach
of Article 73(2) by Russia, and reduced the level of the bond, by accepting the
main argument of Japan. It should be recalled, however, that prompt release is a
procedure designed to ensure prompt release simply on condition of the payment of
a bond/security. What should be discussed is, rather, whether the level of a bond set by
the respondent is ‘reasonable’ in light of Article 73(2). One important comment was
that the bond, as is the case with a bail bond, ‘should constitute sufficient security what
would ensure implementation of a court decision at the end of the proceedings’.
116
Second, the most discussed issue was the level of the bond. ITLOS concluded
that in this case it should be 10 million roubles. Although the tribunal did not explain
its reasons for that calculation, it may be presumed that 22 million roubles as re-set
by Russia as an appropriate level for the bond, was reduced to 10 million roubles,
by subtracting the value of the vessel, which had been calculated by Russia to be
11.3 million roubles.
117 Therefore, it may be inferred from the above, that the value
of the vessel may, or in some cases should, be excluded from the ‘reasonable’ level
of a bond. It should be noted, on this point, that this finding of ITLOS is said to be
incompatible with previous findings,
118 and, what is more, the calculation depends
largely on the facts of each case.
119
Third, this case illustrates an interesting aspect of the UNCLOS-DSM’s function,
in that in the proceeding and thereafter, the parties altered their initial positions.
Russia detained the Hoshinmaru on 1 June 2007, but did not fix the amount of the
bond, regardless of the request of Japan.
120 Once Japan initiated the procedure on 6
July 2007, however, Russia changed its stance by setting the amount, albeit belatedly,
116 Declaration of Judge Lucky, ITLOS Reports 2007, p. 58.
117 Judgment of 6 August 2007, para. 51.
118 Declaration of Judge Kolodkin, ITLOS Reports 2007, p. 54. Judge Kolodkin stated that ITLOS’s
calculation is inconsistent with its own practice.
119 It should be recalled that a bond should be proportionate to the gravity of the alleged offences
(Judgement, para. 88). In other words, where the gravity of the offence/s is so high that the confiscation of the vessel itself was presumable, the value of vessel may not be excluded from the total
amount of a bond.
120 On this point, ITLOS did not fix the time-limit for setting a bond. Judgment of 6 August 2007,
para. 80. According to one of the judges, however, ‘a maximum period of approximately one month
after the detention of a vessel and its crew would seem reasonable for the setting of the bond’.
Declaration of Judge Türk, ITLOS Reports 2007, p. 60.
D. Tamada
been completed and the decision of the confiscation of the vessel had become final. On
the other hand, it has a great significance that the judgment pointed out, in general terms,
that the confiscation decided in unjustified haste contradicted the object and purpose of
the prompt release procedures provided in the UNCLOS, and Japan appreciates this
view of the judgment. The judgment, at the same time, pointed out that the flag State
had to initiate the prompt release procedure in a timely manner.
4. Japan hopes that the release of the vessel and the crew of the 88th Hoshinmaru will
be realized promptly based on the judgment. Japan also hopes that this judgment
will become a stimulus for Russia to improve its domestic regulations on the seizure
and release of foreign vessels and their implementation, which would prevent the
reoccurrence of long detention of Japanese fishing vessels in the future (emphasis added).
First, Japan gained from this outcome, in the sense that ITLOS found a breach
of Article 73(2) by Russia, and reduced the level of the bond, by accepting the
main argument of Japan. It should be recalled, however, that prompt release is a
procedure designed to ensure prompt release simply on condition of the payment of
a bond/security. What should be discussed is, rather, whether the level of a bond set by
the respondent is ‘reasonable’ in light of Article 73(2). One important comment was
that the bond, as is the case with a bail bond, ‘should constitute sufficient security what
would ensure implementation of a court decision at the end of the proceedings’.
116
Second, the most discussed issue was the level of the bond. ITLOS concluded
that in this case it should be 10 million roubles. Although the tribunal did not explain
its reasons for that calculation, it may be presumed that 22 million roubles as re-set
by Russia as an appropriate level for the bond, was reduced to 10 million roubles,
by subtracting the value of the vessel, which had been calculated by Russia to be
11.3 million roubles.
117 Therefore, it may be inferred from the above, that the value
of the vessel may, or in some cases should, be excluded from the ‘reasonable’ level
of a bond. It should be noted, on this point, that this finding of ITLOS is said to be
incompatible with previous findings,
118 and, what is more, the calculation depends
largely on the facts of each case.
119
Third, this case illustrates an interesting aspect of the UNCLOS-DSM’s function,
in that in the proceeding and thereafter, the parties altered their initial positions.
Russia detained the Hoshinmaru on 1 June 2007, but did not fix the amount of the
bond, regardless of the request of Japan.
120 Once Japan initiated the procedure on 6
July 2007, however, Russia changed its stance by setting the amount, albeit belatedly,
116 Declaration of Judge Lucky, ITLOS Reports 2007, p. 58.
117 Judgment of 6 August 2007, para. 51.
118 Declaration of Judge Kolodkin, ITLOS Reports 2007, p. 54. Judge Kolodkin stated that ITLOS’s
calculation is inconsistent with its own practice.
119 It should be recalled that a bond should be proportionate to the gravity of the alleged offences
(Judgement, para. 88). In other words, where the gravity of the offence/s is so high that the confiscation of the vessel itself was presumable, the value of vessel may not be excluded from the total
amount of a bond.
120 On this point, ITLOS did not fix the time-limit for setting a bond. Judgment of 6 August 2007,
para. 80. According to one of the judges, however, ‘a maximum period of approximately one month
after the detention of a vessel and its crew would seem reasonable for the setting of the bond’.
Declaration of Judge Türk, ITLOS Reports 2007, p. 60.