12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
247
action ‘within reasonable time’.
131 ITLOS concluded that, by the decision of
the Supreme Court, upholding the lower court decision, the confiscation became
final and, consequently, the application was without object.
(3) Operative provision
ITLOS concluded unanimously that,
132
the Application of Japan no longer has any object and that the Tribunal is therefore not
called upon to give a decision thereon.
12.6.3 Analysis
The reasoning of the Judgment can be summarised as follows: first, ITLOS is
prevented, by Article 292(3), from prejudicing a merits decision of a coastal State’s
domestic court system. Second, the decision of confiscation had become final and
definitive in the Russian domestic court system. Third, even if Japan decided to satisfy
the bond set by Russia, ITLOS cannot revoke the final decision of confiscation.
133
Consequently, the request of prompt release is without object, in the sense that the
release cannot be realised by way of the prompt release procedure.
In addition to the clarification of the legal consequences of the confiscation for
the prompt release procedure,
134 the ITLOS Judgment contains important comments
regarding the essence of the prompt release procedure.
First, most importantly, the prompt release procedure is based on the balance
between the interests of the coastal State and those of the flag State. Consequently,
a confiscation renders the prompt release without object, under Article 292(3), on
the one hand. On the other hand, however, taking into account this detrimental effect
of confiscation, it should neither prevent the ship-owner from having recourse to
domestic judicial remedies nor the flag State from resorting to the prompt release
procedure.
Second, a characteristic fact of this case is that Japan initiated the prompt release
procedure rather belatedly, namely, on 6 July 2007, while the Tomimaru had been
boarded and inspected on 31 October 2006, and detained thereafter. As ITLOS
correctly pointed out, ‘it is incumbent upon the flag State [Japan] to act in a timely
manner’ and, otherwise, its interests may not be taken seriously in comparison with
the interests of the coastal State. Thus, the ITLOS Judgment reminds us of the
exceptional character of the prompt release procedure, the aim of which is to urge
131 Judgment of 6 August 2007, para. 77.
132 Judgment of 6 August 2007, para. 82.
133 An alternative interpretation may be that Article 292(1), referring to release from detention,
presupposes vessels as still detained. Once confiscated, however, a vessel is no longer detained
and, consequently, the issue of release becomes moot. See Separate Opinion of Judge Jesus, ITLOS
Reports 2007, p. 108.
134 Bernard H. Oxman, ‘The “Tomimaru” (Japan v. Russian Federation). Judgment. ITLOS Case
No. 15’, American Journal of International Law, vol. 102 (2008), pp. 318–320.
247
action ‘within reasonable time’.
131 ITLOS concluded that, by the decision of
the Supreme Court, upholding the lower court decision, the confiscation became
final and, consequently, the application was without object.
(3) Operative provision
ITLOS concluded unanimously that,
132
the Application of Japan no longer has any object and that the Tribunal is therefore not
called upon to give a decision thereon.
12.6.3 Analysis
The reasoning of the Judgment can be summarised as follows: first, ITLOS is
prevented, by Article 292(3), from prejudicing a merits decision of a coastal State’s
domestic court system. Second, the decision of confiscation had become final and
definitive in the Russian domestic court system. Third, even if Japan decided to satisfy
the bond set by Russia, ITLOS cannot revoke the final decision of confiscation.
133
Consequently, the request of prompt release is without object, in the sense that the
release cannot be realised by way of the prompt release procedure.
In addition to the clarification of the legal consequences of the confiscation for
the prompt release procedure,
134 the ITLOS Judgment contains important comments
regarding the essence of the prompt release procedure.
First, most importantly, the prompt release procedure is based on the balance
between the interests of the coastal State and those of the flag State. Consequently,
a confiscation renders the prompt release without object, under Article 292(3), on
the one hand. On the other hand, however, taking into account this detrimental effect
of confiscation, it should neither prevent the ship-owner from having recourse to
domestic judicial remedies nor the flag State from resorting to the prompt release
procedure.
Second, a characteristic fact of this case is that Japan initiated the prompt release
procedure rather belatedly, namely, on 6 July 2007, while the Tomimaru had been
boarded and inspected on 31 October 2006, and detained thereafter. As ITLOS
correctly pointed out, ‘it is incumbent upon the flag State [Japan] to act in a timely
manner’ and, otherwise, its interests may not be taken seriously in comparison with
the interests of the coastal State. Thus, the ITLOS Judgment reminds us of the
exceptional character of the prompt release procedure, the aim of which is to urge
131 Judgment of 6 August 2007, para. 77.
132 Judgment of 6 August 2007, para. 82.
133 An alternative interpretation may be that Article 292(1), referring to release from detention,
presupposes vessels as still detained. Once confiscated, however, a vessel is no longer detained
and, consequently, the issue of release becomes moot. See Separate Opinion of Judge Jesus, ITLOS
Reports 2007, p. 108.
134 Bernard H. Oxman, ‘The “Tomimaru” (Japan v. Russian Federation). Judgment. ITLOS Case
No. 15’, American Journal of International Law, vol. 102 (2008), pp. 318–320.