12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
245
on 13 July 2007, seven days after the submission of the application. This meant that
the initiation of the procedure by Japan could successfully urge Russia to respond to
the request. With this improvement, the situation was already ameliorated between
the parties, leaving only the issue of the level of the bond to be decided. In other
words, this is one of the functions of ITLOS capable of addressing deadlocks that
may arise between disputing States, by providing them with further opportunities to
negotiate.
12.6 The “Tomimaru” Case: Prompt Release
12.6.1 Facts and the Position of Japan
The trawler Tomimaru is a fishing vessel of Japanese nationality. On 31 October 2006,
fishing in the Russian EEZ with a fishing licence issued by Russia, the Tomimaru
was boarded by patrolling officers and inspected by Russian officials on suspicion of
illegal catches.
121 A criminal case was instituted against the Master of the Tomimaru
on 8 November 2006, and the Tomimaru itself was considered material evidence
in those criminal proceedings.
122 Administrative proceedings were also instituted
against the vessel owner (Kanai Gyogyo) on 14 November 2006. The owner requested
the release of the Tomimaru upon posting the bond on 30 November 2006. On 12
December 2006, the Russian Prosecutor’s Office announced the bond as set at 8.8
million roubles, which was not paid by the owner.
123 By order of the PetropavloskKamchatskii City Court, the Tomimaru was confiscated. The same Court decided on
15 May 2006 the imposition of a fine of 500,000 roubles and to award damages of
9 million roubles against the Master, who paid the fine but not the damages. The
Supreme Court of Russia dismissed the complaint concerning the confiscation of the
Tomimaru.
124
On 6 July 2007, the same day as in the “Hoshinmaru” case, Japan filed an application to ITLOS against Russia concerning the release of the Tomimaru. Public
sittings were held on 21 and 23 July 2007, simultaneously with the “Hoshinmaru”
case.
By its final submissions, Japan requested that ITLOS:
125
(a) declare that the Tribunal has jurisdiction under Article 292 of the UNCLOS to hear the
application concerning the detention of the vessel the 53rd Tomimaru […] in breach of
the Respondent’s obligations under Article 73(2) of the Convention;
121 Judgment of 6 August 2007, paras. 22–25.
122 Judgment of 6 August 2007, para. 28.
123 Judgment of 6 August 2007, paras. 33 and 36.
124 Judgment of 6 August 2007, para. 46.
125 Judgment of 6 August 2007, para. 21.
245
on 13 July 2007, seven days after the submission of the application. This meant that
the initiation of the procedure by Japan could successfully urge Russia to respond to
the request. With this improvement, the situation was already ameliorated between
the parties, leaving only the issue of the level of the bond to be decided. In other
words, this is one of the functions of ITLOS capable of addressing deadlocks that
may arise between disputing States, by providing them with further opportunities to
negotiate.
12.6 The “Tomimaru” Case: Prompt Release
12.6.1 Facts and the Position of Japan
The trawler Tomimaru is a fishing vessel of Japanese nationality. On 31 October 2006,
fishing in the Russian EEZ with a fishing licence issued by Russia, the Tomimaru
was boarded by patrolling officers and inspected by Russian officials on suspicion of
illegal catches.
121 A criminal case was instituted against the Master of the Tomimaru
on 8 November 2006, and the Tomimaru itself was considered material evidence
in those criminal proceedings.
122 Administrative proceedings were also instituted
against the vessel owner (Kanai Gyogyo) on 14 November 2006. The owner requested
the release of the Tomimaru upon posting the bond on 30 November 2006. On 12
December 2006, the Russian Prosecutor’s Office announced the bond as set at 8.8
million roubles, which was not paid by the owner.
123 By order of the PetropavloskKamchatskii City Court, the Tomimaru was confiscated. The same Court decided on
15 May 2006 the imposition of a fine of 500,000 roubles and to award damages of
9 million roubles against the Master, who paid the fine but not the damages. The
Supreme Court of Russia dismissed the complaint concerning the confiscation of the
Tomimaru.
124
On 6 July 2007, the same day as in the “Hoshinmaru” case, Japan filed an application to ITLOS against Russia concerning the release of the Tomimaru. Public
sittings were held on 21 and 23 July 2007, simultaneously with the “Hoshinmaru”
case.
By its final submissions, Japan requested that ITLOS:
125
(a) declare that the Tribunal has jurisdiction under Article 292 of the UNCLOS to hear the
application concerning the detention of the vessel the 53rd Tomimaru […] in breach of
the Respondent’s obligations under Article 73(2) of the Convention;
121 Judgment of 6 August 2007, paras. 22–25.
122 Judgment of 6 August 2007, para. 28.
123 Judgment of 6 August 2007, paras. 33 and 36.
124 Judgment of 6 August 2007, para. 46.
125 Judgment of 6 August 2007, para. 21.