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Published online by Cambridge University Press: 28 February 2019
Article 292 of the United Nations 1982 Convention on the Law of the Sea (Convention) reads:
1. Where the authorities of a state party have detained a vessel flying the flag of another state party and it is alleged that the detaining state has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining state under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.
2. The application for release may be made only by or on behalf of the flag state of the vessel.
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. The authorities of the detaining state remain competent to release the vessel or its crew at any time.
4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining state shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.
1 See: Lagoni, Rainer “The Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea: A Preparatory Report,” 11 International Journal of Marine and Coastal Law 147 (1996).Google Scholar
2 In this context, B.H. Oxman writes: “In particular, the 200-mile exclusive economic zone represents a dramatic geographic and functional expansion of coastal state jurisdiction bringing a third of the marine environment within the limits of coastal state jurisdiction.” See, Bernard H. Oxman, “Observations on Vessel Release under the United Nations Convention on the Law of the Sea,” 11 International Journal of Marine and Coastal Law 202 (1996).Google Scholar
3 See, Wegelein, Florian H.Th. “The Rules of the Tribunal in the Light of Prompt Release of Vessels,” (1999) 30 Ocean Development & International Law 265, 266.Google Scholar
4 Treves, Tullio “The Exclusive Economic Zone and the Settlement of Disputes.” The Exclusive Economic Zone and the United Nations Convention on the Law of the Sea, 1982-2000: A Preliminary Assessment of State Practice. Eds. Erik Franck and Philippe Gauthier. Brylant, Brussels, 2003. 90.Google Scholar
5 See: Oxman, Bernard H. op.cit. 203.Google Scholar
6 see: United Nations Convention on the Law of the Sea 1982. A Commentary. Vol.V. Ed. Nordquist, Myron H. Martinus Nijhoff Publishers. Dordrecht, 1989. 66–71.Google Scholar
7 The term “detention” used in Article 292 of the Convention “is to be read according to its broadest meaning covering all cases in which the movement of a vessel or of persons is prevented by an authority.” See, Tullio Treves, “The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea,” 11 International Journal of Marine and Coastal Law 182 (1996).Google Scholar
8 No author is considering Article 220(8) of the Convention as a provision which violation makes PRP applicable. See, e.g. Tullio Treves, op.cit. 179; Rainer Lagoni, 147-164; David H. Anderson. “Investigation, Detention and Release of Foreign Vessels under the UN Convention on the Law of the Sea of 1982 and Other International Agreements,” 11 International Journal of Marine and Coastal Law 165 (1996); Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution. Kluwer: The Hague, 1998. 490,491.Google Scholar
9 A Commentary in footnote nr.6, 69 (paragraph 292.5).Google Scholar
10 See: Tullio Treves, op.cit. 179.Google Scholar
11 See: Rainer Lagoni, op.cit. 147.Google Scholar
12 Article 287 (1) of the Convention gives a State to choose, by means of a written declaration at signing, ratifying or acceeding to this Convention or at any time thereafter, one or more of the following means for the settlement of disputes:Google Scholar
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;Google Scholar
(b) the International Court of Justice;Google Scholar
(c) an arbitral tribunal constituted in accordance with Annex VII;Google Scholar
(d) special arbitral tribunal constituted in accordance with Annex VIII for one or more categories of disputes specified therein.Google Scholar
We note that the following paragraphs of that Article give three important rules for submission of a particular dispute to a court or tribunal mentioned above. Firstly, in cases when choices of procedure of the parties to the dispute differ, or where one of them had not previously indicated its choice – the procedure to be followed is arbitration in accordance with Annex VII of the Convention. Secondly, if the parties to the dispute have accepted the same procedure for settlement of the dispute, this procedure shall be followed. Both rules are subject to the right of parties to agree otherwise. Thirdly, when a state party (to the Convention) which is party to the dispute has not made any declaration (in force), it shall be deemed to have accepted arbitration in accordance with Annex VII. This resolution embodied in Article 287 of the Convention is actually called “the Montreaux (Riphagen) Compromise”– see: United Nations Convention on the Law of the Sea 1982. A Commentary. Vol.V. Ed. Myron H.Nordquist. Martinus Nijhoff Publishers. Dordrecht, 1989, 8; or professor Alan E. Boyle is calling “the cafeteria approach” – see: Alan E. Boyle, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction,” 46 International and Comparative Law Quarterly 39, 40 (1997).Google Scholar
13 Article 292(1) of the Convention makes ITLOS the “default body” or gives him the competence of “last resort.” See, Tullio Treves, op.cit., 187; Wegelein, Florian H.Th. op.cit., 265; Shabtai Rosenne, “Establishing the International Tribunal for the Law of the Sea,” 89 American Journal of International Law 813 (1995).Google Scholar
14 See, e.g., Oxman, Bernard H. op.cit. 211-213.Google Scholar
15 See, A Commentary in footnote nr.6, 70, 71 (paragraph 292.9).Google Scholar
16 See, Tullio Treves, op.cit., p. 182; Erik Jaap Molenaar, op.cit., 489.Google Scholar
17 In this context use of the term prompt is correct but it goes only for the procedure itself while instituted. In the “Camouco” case (Panama v. France; List of cases nr.5) in paragraph 54 of the Judgement of 7 February 2000 the ITLOS confirmed that there is no time limit for a flag state to present an application for release while the respondent argued that the applicant has been inactive 3 month and has created a situation akin to estoppel. It is noteworthy that in the case of Volga (Russian Federation v. Australia; List of cases nr.11 for the ITLOS), the detention was effected on February 7th, but the application for prompt release was made on December 2nd, 2002 (almost 10 months later).Google Scholar
18 See Article 292(3) of the Convention.Google Scholar
19 The provision reads: “The Tribunal shall give priority to applications for release of vessels or crews over all other proceedings before the Tribunal.” However, if the Tribunal is seized of an application for release of a vessel or crew and of request for the prescription of provisional measures, it shall take the necessary measures to ensure that both the application and the request are dealt with without delay.” The full text of these Rules are available on World Wide Web at http://www.un.org/Depts/los/ITLOS/Rules-Tribunal.htm (hereinafter - Rules);Google Scholar
20 See, Wegelein, F. op.cit. 263-265, 266.Google Scholar
21 See, Rainer Lagoni, op.cit. 151; there are of course other substantive reasons giving priority to PRP (commenced unilaterally, judgement is final, etc.) over provisional measures.Google Scholar
22 Inapplicability of this principle for PRP is also the view of ITLOS, stated in paragraph 57 of the 7 February 2000 Judgement on Camouco (Panama v. France; List of cases nr.5).Google Scholar
23 For more detail, see, A Commentary, note 6, 66–71.Google Scholar
24 Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction. Volume II. General Assembly, Official Records: Twenty-Eight session, Supplement Nr.21 (A/9021). United Nations. New York, 1973, 22, 23.Google Scholar
25 See, David H.Anderson, op.cit. 167.Google Scholar
26 See, Gudmundur Eirikson. The International Tribunal for the Law of the Sea. Martinus Nijhoff Publishers. The hague.2000, 118-121. See also, The International Tribunal for the Law of the Sea. Law and Practice. Ed. by P. Chandrasekhara Rao and Rahmatullah Khan. Kluwer Law International. The Hague, 2001, 55 (L.D.M. Nelson), and 152-155 (Tullio Treves).Google Scholar
27 See, http://www.itlos.org/cgi-bin/cases/list_of_cases.pl?language=en, case number 9, the Chaisiri Reefer 2 (Panama v. Yemen) was discontinued by the parties to the dispute according to the Article 105, paragraph 2 of the Rules of the Tribunal.Google Scholar
28 Actually, in the first case of ITLOS – prompt release of mv Saiga – the coastal state of Guinea claimed that the Saiga was engaged in smuggling and customs violations for refuelling three fishing vessels within the EEZ of Guinea prior to arrest. But the Tribunal found that offshore bunkering of fishing vessels is related to fishing activities. See also, F. Wegelein, op.cit. 275-277.Google Scholar
29 See for example, Patricia Birnie and Alan Boyle. International Law & the Environment. Second edition. Oxford, University Press. 2002, pp.385-389.Google Scholar
30 Article 229 of the Convention says: “Nothing in this Convention affects the institution of civil proceedings in respect of any claim for loss or damage resulting from pollution of the marine environment.”Google Scholar
31 In cases like the grounding of the Maltese flagged tanker Tasman Spirit in July 2003 at the entrance to the port of Karachi, Pakistan. In this incident, there was a spill of 29,000 tons of oil. The vessel was arrested first by the cargo interest for loss of cargo. See, “Pakistan under fire over Tasman Spirit Karachi response,” in: Lloyd's List, Friday, October 17, 2003.Google Scholar
32 About these arrest conventions see, Francesco Berlingieri, Arrest of Ships. A Commentary on the 1952 and 1999 Arrest Conventions. Third ed. CMI, LLP, London, 2000.Google Scholar
33 Text of LLMC-76 see, Ignacio Arroyo, International Maritime Conventions. Kluwer, Dewenter (1991), 1401-1412.Google Scholar
34 Nevertheless, Article 3 (b) excludes LLMC-76 rules for application in claims of oil pollution damage “within the meaning of abovementioned CLC 69/92,” but this mechanism of a compensation fund is also used by nations for oil pollution cases, obviously with other limits of liability. See, e.g. the Maritime Law Act of the Republic of Estonia of June 5th, 2002, Articles 78 and 83 (RT I 2002, 55, 345).Google Scholar
35 “Arrest” according to Article 1 (2) of the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going ships, 1952 means “the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgement.”Google Scholar
36 See, A Commentary in note 6, 5.Google Scholar
37 Judges S. Oda and G. Guillaume have argued that the ITLOS is a futile institution and that creation of a specialized tribunal may destroy the unity of international law. See, Oda, S. “The ICJ Viewed from the Bench,” 244 II Hag. Rec. 127-155 (1993); and Oda, S., “Dispute settlement Prospects in the Law of the Sea,” 44 International and Comparative Law Quarterly 863 (1995); Guillaume, G., “The Future of International Judicial Institutions,” 44 International and Comparative Law Quarterly 848 (1995).Google Scholar
38 Article 280 of the Convention states: “Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.”Google Scholar
39 There is obligation to States Parties to proceed expeditiously to exchange views regarding the settlement when a dispute arises, see Article 283 of the Convention.Google Scholar
40 The whole of Section 2 is subject to limitations and exceptions in Section 3 (Articles 297 and 298).Google Scholar
41 See, A Commentary in footnote nr.6, p. 105 (paragraph 297.19).Google Scholar
42 See, Molenaar, Erik Jaap op.cit. 484.Google Scholar
43 See, Lagoni, Rainer op.cit. 150.Google Scholar
44 See, E.Boyle, Alan note 12, 49.Google Scholar
45 See, Charney, Jonathan I. “The Impact on the International Legal System of the Growth of International Courts and Tribunals.” 31 International Law and Politics 705 (1999).Google Scholar
46 See, Dolliver, L. Nelson, M. The International Tribunal for the Law of the Sea: Some Issues,” in The International Tribunal for the Law of the Sea. Law and Practice. Eds. Rao, P. Chandrasekhara and Khan, Rahmatullah Kluwer: The Hague. 2001. 53, 54.Google Scholar
47 See, note 6, 69 (para. 292.5).Google Scholar
48 See, E.Boyle, Alan “UNCLOS, the Marine Environment and the Settlement of Disputes,” in Competing Norms in the Law of Marine Environmental Protection – Focus on Ship Safety and Pollution Prevention. Ed. Ringbom, Henrik Kluwer: London, 1997, 245.Google Scholar
49 See, Lagoni, Rainer op.cit. 158.Google Scholar
50 See, Treves, Tullio(1996), op.cit. 186.Google Scholar
51 See, Erik Jaap Molenaar, op.cit. 490, 491.Google Scholar
52 David H.Anderson concludes that “release under Article 292 may not be possible, ibid” 177.Google Scholar
53 See, Lagoni, Rainer op.cit. 159.Google Scholar
54 See, Treves, Tullio “The Jurisdiction of the International Tribunal for the Law of the Sea,” in The International Tribunal for the Law of the Sea. Law and Practice. Ed. Chakndrasekhara Rao and Rahmatullah Khan. Kluwer Law International: The Hague, 2001. 155; Gudmundur Eirikson, op.cit. 121. also in: Tullio Treves (1996), op.cit. 181.Google Scholar
55 The standard of appreciation is the standard by which the Tribunal decides whether the allegation of the requesting party of an infraction by the coastal State is sufficient for an order of prompt release.Google Scholar
56 See, Ambatielos Case (Greece v. U.K.), Merits: Obligation to Arbitrate, 1953 I.C.J. 10, 18 (Judgement of May 19).Google Scholar
57 See, F.H.Th. Wegelein, op.cit. 269-275.Google Scholar
58 David H.Anderson notes the vessel called Mostoles which was detained by the Dutch Maritime Administration in Rotterdam in 1993 for suspected violation of MARPOL. After some repairs had been made, the detention was maintained by the competent officer because she still had on board some engine bilge water which had been pumped into cargo slop tanks. The officer also declined the offer to seal them because the next port of call was not disclosed or known. The owner's complaint to the Dutch Ministry of Transport did not help, and he had to order a lighter and empty the slop tanks of engine bilge water before he got permission for the vessel to continue her trip. See, David H.Anderson, op.cit. 175, 176.Google Scholar
