246
D. Tamada
(b) declare that the application is admissible, that the allegation of the Applicant is wellfounded, and that the Respondent has breached its obligation under Article 73(2) of the
Convention; and.
(c) order the Respondent to release the vessel the Tomimaru, upon such terms and conditions
as the Tribunal shall consider reasonable.
The final submissions of Japan were identical to those of the “Hoshinmaru” case.
12.6.2 Judgment of ITLOS
(1) Jurisdiction and admissibility
ITLOS only briefly touched upon the issues of jurisdiction and admissibility
raised by Russia, and to which implicitly affirmatively responded.
126
(2) Effect of confiscation
The main argument of Russia was that the judgments of the Russian courts
(namely, the Kamchatka District Court, the Petropavlovsk-Kamchatskii City
Court, and the Supreme Court of Russia) confirming the confiscation of the
Tomimaru renders the application without object, by virtue of Article 293(3)
127
of UNCLOS.
128 ITLOS, taking into account this provision, expressed its
understanding of the object and purpose of the prompt release procedure as
follows:
article 73 of the Convention establishes a balance between the interests of the coastal
State in taking appropriate measures as may be necessary to ensure compliance with
the laws and regulations adopted by it on the one hand and the interest of the flag State
in securing prompt release of its vessels and their crew upon the posting of a bond or
other security on the other. 129
Then, the requirement under Article 292(3) that the ITLOS Judgment must be
‘without prejudice to the merits of any case’ is a factor in any such balancing act.
The confiscation must not be used to upset this balance, while the decision of
confiscation renders the prompt release procedure without object.
130 Although,
conversely, a confiscation, decided in unjustified haste, would jeopardise the
operation of Article 292, there was no ‘unjustified haste’ in this case, since
Japan had not acted ‘in a timely manner’ and, in other words, had not taken
126 ITLOS did not seriously examine the issue of jurisdiction and of admissibility of the application.
The explanation of ITLOS seems to be that, once it found the application being without object, it
had not been necessary ‘to pronounce expressly upon the several submissions of the parties, in the
form in which they have been cast’. Judgment of 6 August 2007, para. 81.
127 Article 292(3): ‘The court or tribunal shall deal without delay with the application for release
and shall deal only with the question of release, without prejudice to the merits of any case before
the appropriate domestic forum against the vessel, its owner or its crew’ (emphasis added).
128 Judgment of 6 August 2007, paras. 59–61.
129 Judgment of 6 August 2007, para. 74.
130 Judgment of 6 August 2007, para. 76.
D. Tamada
(b) declare that the application is admissible, that the allegation of the Applicant is wellfounded, and that the Respondent has breached its obligation under Article 73(2) of the
Convention; and.
(c) order the Respondent to release the vessel the Tomimaru, upon such terms and conditions
as the Tribunal shall consider reasonable.
The final submissions of Japan were identical to those of the “Hoshinmaru” case.
12.6.2 Judgment of ITLOS
(1) Jurisdiction and admissibility
ITLOS only briefly touched upon the issues of jurisdiction and admissibility
raised by Russia, and to which implicitly affirmatively responded.
126
(2) Effect of confiscation
The main argument of Russia was that the judgments of the Russian courts
(namely, the Kamchatka District Court, the Petropavlovsk-Kamchatskii City
Court, and the Supreme Court of Russia) confirming the confiscation of the
Tomimaru renders the application without object, by virtue of Article 293(3)
127
of UNCLOS.
128 ITLOS, taking into account this provision, expressed its
understanding of the object and purpose of the prompt release procedure as
follows:
article 73 of the Convention establishes a balance between the interests of the coastal
State in taking appropriate measures as may be necessary to ensure compliance with
the laws and regulations adopted by it on the one hand and the interest of the flag State
in securing prompt release of its vessels and their crew upon the posting of a bond or
other security on the other. 129
Then, the requirement under Article 292(3) that the ITLOS Judgment must be
‘without prejudice to the merits of any case’ is a factor in any such balancing act.
The confiscation must not be used to upset this balance, while the decision of
confiscation renders the prompt release procedure without object.
130 Although,
conversely, a confiscation, decided in unjustified haste, would jeopardise the
operation of Article 292, there was no ‘unjustified haste’ in this case, since
Japan had not acted ‘in a timely manner’ and, in other words, had not taken
126 ITLOS did not seriously examine the issue of jurisdiction and of admissibility of the application.
The explanation of ITLOS seems to be that, once it found the application being without object, it
had not been necessary ‘to pronounce expressly upon the several submissions of the parties, in the
form in which they have been cast’. Judgment of 6 August 2007, para. 81.
127 Article 292(3): ‘The court or tribunal shall deal without delay with the application for release
and shall deal only with the question of release, without prejudice to the merits of any case before
the appropriate domestic forum against the vessel, its owner or its crew’ (emphasis added).
128 Judgment of 6 August 2007, paras. 59–61.
129 Judgment of 6 August 2007, para. 74.
130 Judgment of 6 August 2007, para. 76.