Twenty Years of Prompt Release of Vessels: Admissibility, Jurisdiction, and Recent Trends

ABSTRACT The International Tribunal for the Law of the Sea (ITLOS) has a residual compulsory jurisdiction regarding the prompt release of seized vessels. This procedure is one of the novelties introduced in the UN Convention on the Law of the Sea and is unique in the international judicial universe because of both its procedural characteristics and its functions. This article highlights how prompt release cases do not necessarily stem from a dispute. This has a direct consequence for those whose interests the procedure protects and who can submit an application. The last part of this article discusses the recent trend where the release of vessels and crews has been requested in the context of provisional measures applications.


Introduction
The International Tribunal for the Law of the Sea (ITLOS or the Tribunal) has residual compulsory jurisdiction in cases that require a particular expeditiousness, such as prompt release. 1 This procedure is one of the novelties introduced by the United Nations Convention for the Law of the Sea (hereinafter LOSC or the Convention) and is unique in the international judiciary universe on account of both its procedural characteristics and its functions.
Pursuant to LOSC Article 292(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 the 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 prompt release of a vessel can be requested on the ground of the violation by the coastal state of LOSC Article 73, 3 220, 4 or 226. 5 The procedure of prompt release is neither incidental nor prejudicial to the procedure on the merits before the national courts. It is an autonomous procedure. Article 292(3) underlines the fact that the competent court or tribunal "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 final judgment in a prompt release case, however, is designed to take effect before the case on the merits is resolved by the domestic authorities, provided that this occurs before the national courts have determined the matter. 6 The international procedure may have an impact on the procedure on the merits at the domestic level because, for instance, it can overrule a decision to confiscate the vessel or cargo. 7 The prompt release procedure is thus not subject to the prior exhaustion of local remedies. 8 The requirement of expedition justifies the exemption. If all the local remedies must be exhausted, it would undermine the whole purpose of prompt release. 9 States have sometimes granted international courts or tribunals an exclusive jurisdiction, which has the effect of precluding the exercise of power by domestic courts. 10 This phenomenon can be explained by a "lack of faith in the capability or will of national courts to provide for independent and impartial adjudication of international claims." 11 Nollkaemper points out that Article 292 of the LOSC is an example of such a phenomenon. 12 Other authors have highlighted that the powers exercised by ITLOS in prompt release cases correspond to functions ordinarily exercised by national administrations and reviewed by the domestic judiciary. 13 This article analyzes the ITLOS prompt release case law in order to indicate the nature of the functions exercised by the Tribunal regarding this peculiar procedure. There are three main steps to the analysis. First, the article examines admissibility issues. Second, the article scrutinizes the jurisdiction of the ITLOS and argues that it is wider than what might be suggested by a strict literal interpretation of the LOSC. Third, the article discusses the recent practice of requesting the prompt release of vessels and their crews in the context of applications under the LOSC pursuant to Article 290 for provisional measures. This recent practice may influence the use by flag states of prompt release.

Admissibility issues in the prompt release procedures
The protection of which interests?
The purpose of the prompt release procedure is to balance the interests of, on the one hand, coastal states in protecting their sovereign rights and, on the other, flag states in the maritime activities of their fleet. The prompt release procedure was introduced into the LOSC as a response to the extension of coastal states' rights in the exclusive economic zone (EEZ). 14 In the Volga Case, besides fixing a bond, Australia, the coastal state, "made the release of the vessel conditional upon the fulfilment of two conditions: that the vessel carry a VMS [Vessel Monitoring System], and that information concerning particulars about the owner and ultimate beneficial owners of the ship be submitted to its authorities." 15 Australia justified these further requirements in consideration of the "serious problem of continuing illegal fishing in the Southern Ocean, the dangers this poses to the conservation of fisheries resources and the maintenance of the ecological balance of the environment," and the Commission for the Conservation of Antarctic Marine Living Resources conservation measures. 16 ITLOS dismissed Australia's claims and affirmed that The object and purpose of article 73, paragraph 2, read in conjunction with article 292 of the Convention, is to provide the flag State with a mechanism for obtaining the prompt release of a vessel and crew arrested for alleged fisheries violations by posting a security of a financial nature whose reasonableness can be assessed in financial terms. The inclusion of additional non-financial conditions in such a security would defeat this object and purpose. 17 In his separate opinion, Judge Cot emphasized the "considerable margin of appreciation" that exists for the coastal State in exercising its sovereign rights with regard to the conservation of living resources. 18 But he also pointed out that "attaching conditions to the bond would transform the very nature of the procedure established by article 292," that it "would inevitably have the effect of complicating and slowing down the procedure, which would lose its prompt character," and that it "would be tantamount to deflecting the article 292 procedure from its purpose and distorting its meaning." 19 Some 30 years after the adoption of the LOSC, and in light of developments in international environmental law, it may be appropriate to rethink the purpose of the prompt release procedure, even perhaps to distort its original meaning. The prompt release procedure appears to be a strictly bilateral proceeding, but the procedure must be understood in the context of the value that the LOSC attaches to the protection of the marine environment. First, two of the provisions the violation of which by a coastal state may trigger a prompt release procedure, namely Articles 220 and 226, pertain to Part XII of the LOSC, "Protection and Preservation of the Marine Environment." Moreover, the LOSC sets out a number of obligations for the protection of the marine environment that provide part of the normative context of the prompt release procedure. Protecting the marine environment and conserving marine living resources should combine the interests of both coastal and flag states and should have an impact in prompt release matters. 20 Even if the ITLOS considered that neither the problem of illegal fishing nor the protection of the marine environment should influence the interpretation of the prompt release procedure, 21 these common interests should not be ignored in giving effect to the promptness imperative. 22 Applications by the flag state or on behalf on the flag state Only three of nine ITLOS prompt release cases have been directly brought by the flag state of the detained vessel-the Volga, 23 Hoshinmaru, 24 and Tomimaru Cases. 25 The prompt release procedure, though not strictly a case of diplomatic protection, does allow the flag state to espouse a private claim for persons (the crew) linked to it by the nationality of the vessel. 26 However, there are two unique elements to the prompt release procedure. First, the arrested vessel may be owned or chartered and operated by a private actor who does not have the nationality of the flag state. Second, given that the detention of the vessel entails considerable economic and financial losses for the shipowner (more pressing than the interests of the flag State 27 ), LOSC Article 292(2) permits the application for release to be made "by or on behalf of the flag State of the vessel." The flag state espouses a private claim of persons linked to it by the nationality of the vessel, and those persons can enjoy a delegation of sovereignty if authorized to act on behalf of the same state. 28 The "on behalf" clause preserves the interstate nature of the dispute and the litigation 29 even if the private party is protecting his or her own interests. 30 However, the clause erodes the legal fiction that once a state espouses a private claim, that claim belongs only to that state. The "on behalf" clause attaches international procedural rights to the material rights consisting of the merits of the dispute that the private party considers violated by the coastal state. 31 The private party does not have an independent right to act, however. In the Grand Prince Case, ITLOS decided to examine proprio motu the basis of its jurisdiction because doubts existed concerning the nationality of the vessel when the application was made. 32 The existence of the nationality link in the relevant phases of the procedure provides for the jurisdiction of the Tribunal and, consequently, the right of the private party to act on behalf of the flag state.
Private parties also play an important role in the postadjudication phase since the bond or other financial security fixed by the Tribunal will likely be paid either by the ship owner or by his or her insurance company.
In the light of these considerations, it is clear that the prompt release procedure is atypical in the international judicial panorama. It is formally an intergovernmental procedure but materially blurs the distinction with transnational proceedings. It aims at guaranteeing flag states' rights, but concretely protects ship owners from undue economic and financial losses.

The limited jurisdiction of ITLOS in prompt release procedures
Article 292(3) states that the court or tribunal competent to deal with the prompt release of a vessel 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.
This separation between the release of the vessel and crew and the merits of a case poses a series of challenges for the tribunal seized with the application while the case is pending before the national authorities. Moreover, in establishing criteria to assess the reasonableness of the bond, the ITLOS has heavily relied on the applicable national law.

Discretion of ITLOS versus discretion of the coastal state
In the Camouco Case, the Tribunal affirmed that "Article 292 provides for an independent remedy and not an appeal against a decision of a national court." 33 For the same reason, a prompt release decision cannot be challenged within the national court system. Otherwise, "a decision under article 292 of the Convention to release the vessel would contradict the decision which concluded the proceedings before the appropriate domestic fora and encroach upon national competences, thus contravening article 292, paragraph 3, of the Convention." 34 As pointed out by Judge Cot in the Volga Case in assessing the reasonableness of a bond, "the Tribunal does not have to substitute its discretion for that of the coastal State … nor is it the hierarchical superior of an administrative or government authority." 35 Instead, in prompt release cases, ITLOS is asked to control and evaluate the discretionary exercise of sovereign rights by the coastal state. 36 ITLOS is required to consider whether the arrest of the ship and the bond are in compliance with the relevant LOSC provisions (Article 73, 220, or 226). ITLOS is then called upon to review how the coastal state has applied international law to the facts. 37 Some authors assert that in such cases the competent international tribunal should defer to prior assessments of the domestic courts; in other words, it should apply the margin of appreciation doctrine. 38 In the Camouco Case, both Judge Wolfrum and Judge Anderson highlighted in their respective dissenting opinions that the discretionary powers of the coastal state and the related margin of appreciation should limit the power of ITLOS review concerning the reasonableness of a bond. 39 Considering that the LOSC does not regulate in detail the enforcement powers of coastal states, 40 which often, as mentioned in the preceding, have a wide margin of discretion in defining and enforcing their EEZ regulations, the ITLOS should not consider the reasonableness of such a system without taking into consideration the enforcement policy of the coastal state 41 and the context of the enforcement measure.
The discretion of coastal states also applies concerning the procedural requirements and guarantees to be applied to the detained vessel and crew, both at the moment of the arrest and to the request for a prompt release before the competent national authorities. Consequently, the circumstances of the seizure of the vessel "are not relevant to … proceedings for prompt release under article 292 of the Convention." 42 However, in the Juno Trader Case, the Tribunal affirmed that "The obligation of prompt release of vessels and crews includes elementary considerations of humanity and due process of law." 43 In his separate opinion, Judge Treves pushed this argument somewhat further and claimed that the concepts of the abuse of law and the due process of law as applied by national courts should be appreciated by the Tribunal. 44 Judge Treves subsequently pointed out how, in the Juno Trader Case, the Tribunal used the reference to considerations of humanity as "a substitute for human rights." 45 What may seem to be an extension of the ITLOS field of concerns, and consequently of its jurisdiction, corresponds to what has been defined as the "human rights consequences of expanding the bases of jurisdiction." 46 If the LOSC has provided coastal states with extended jurisdiction to their adjacent sea, it has also limited their discretion in consideration of the rights not only of the other states but also of individuals. 47 This is more evident in the field of maritime pollution, as the LOSC sets specific limitations and requirements concerning the proceedings before domestic courts (e.g., Articles 228 and 230). In the field of fisheries, the LOSC is vague. As already mentioned, LOSC Article 73 does not detail the procedure to be followed by the domestic authorities, but merely rules out imprisonment. In light of this and of the already-quoted "considerations of humanity," the ITLOS has elaborated certain procedural and substantive guarantees to be applied in domestic decisions that might have an effect on the prompt release procedure. 48 In the Tomimaru Case, the ITLOS affirmed that the "confiscation of a fishing vessel must not be used in such a manner as to upset the balance of the interests of the flag State and of the coastal State established in the Convention." 49 The Tribunal went further by specifying that a confiscation decision "should not be taken in such a way as to prevent the shipowner from having recourse to available domestic judicial remedies, or as to prevent the flag State from resorting to the prompt release procedure set forth in the Convention; nor should it be taken through proceedings inconsistent with international standards of due process of law." 50 The criteria for assessing the reasonableness of the bond The Tribunal assesses the reasonableness of the bond determined by the competent authorities of the detaining state. 51 A bond provides assurance to the detaining state as to the effectiveness of the final judgment of its authorities. 52 The ITLOS is called upon to assess whether the bond or other financial security is reasonable with respect to the meaning of Article 292 of the LOSC; and whether the bond consists of a fair balance between the rights of the flag state, the ship owner and the crew, to prompt release and the right of the coastal state to try and punish. 53 But the LOSC does not provide any criterion to be used in performing such a task by either the ITLOS or the competent domestic courts. The Tribunal has consequently elaborated its own criteria for assessing the reasonableness of the amount, nature, and form of the bond or other financial security. 54 In the Camouco Case, the Tribunal listed the elements that are relevant in order to assess the reasonableness of a bond: "the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form." 55 In the Volga Case, it specified that the gravity of the alleged offenses may be evaluated by reference to "the penalties that may be imposed for the alleged offences under the laws of the Respondent." 56 In the Monte Confurco Case, the ITLOS affirmed that "The balance of interests emerging from articles 73 and 29 provides the guiding criterion for the Tribunal in its assessment of the reasonableness of the bond." 57 Pursuant to LOSC Article 293(1), "a court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention" (emphasis added). Consistently, the Tribunal has stated that "When determining whether the assessment made by the detaining State in fixing the bond or other security is reasonable, the Tribunal will treat the laws of the detaining State and the decisions of its courts as relevant facts." 58 However, once the gravity of the alleged offense is evaluated on the basis of the domestic legislation, which is an expression of the coastal state policy, how is it possible to determine a reasonable bond without again referring to domestic legislation? 59 Moreover, the bond set by the detaining state is a relevant factor in order to assess whether a bond is reasonable. ITLOS evaluates the reasonableness of the bond determined by the domestic court(s) within the meaning of Article 292 of the LOSC by reference, once again, to the relevant domestic legislation and its application in the case. The domestic legislation and the decision of the domestic court(s) seem to be more than just "relevant facts." 60 With the lack of a precise provision in the LOSC concerning the assessment of a reasonable bond, ITLOS has rightly been looking at the practice of the states concerned in each specific case and has attempted to deduce therefrom, in the light of the relevant international legal context, some useful criteria. However, as pointed out in the preceding, ITLOS has so far substantially relied on domestic legislation and decisions. This means that domestic courts cannot rely on clear international rules in order to establish bonds that will be in compliance with international law. Gallala has provocatively suggested: "Tant que le tribunal estime que le terme 'raisonnable' doitêtre interpr et e d'abord et essentiellement au regard du droit international, ne serait-il pas appropri e de mettre a la disposition des juridictions des Etats immobilisateurs une proc edure de question pr ejudicielle aupr es du [Tribunal]?" 61 [As long as the Tribunal considers that the term 'reasonable' must be interpreted first and essentially in the light of international law, would it not be appropriate to allow the detaining state's jurisdictions referring a question for preliminary ruling to the [Tribunal]?] This solution is interesting because it would prevent, in part, the emergence of disputes concerning the reasonableness of a bond. But what would happen if the flag state, or whomsoever on its behalf, requests the ITLOS to consider the reasonableness of a bond that the national court has fixed on the basis of the preliminary ruling? Would the ITLOS then become a sort of "supreme court" in bond issues and not only on prompt release? Perhaps this is what is already happening.

Recent trend: The release of vessels as a provisional measure
In cases not falling under Article 292, when the release of the vessel is not requested on the basis of the available procedure or when the detention of the vessel and its crew is not based on a breach of Article 73(2), 226(2), or 220(6) of the LOSC, the prompt release of a vessel can be ordered by a competent court or tribunal pursuant to Part XV of the LOSC as a decision on the merits of the dispute or as an order of provisional measures. Even though provisional measures have a different objective, namely, the protection of the rights of the parties to a dispute pending the final decision, they can be an "effective and timely procedure … to obtain the release of a vessel." 62 The parties to a dispute are called to "comply promptly with any provisional measures prescribed under this article." 63 The usefulness of the provisional measures procedure in this regard is evidenced in two recent cases: the ARA Libertad Case 64 and the Arctic Sunrise Case. 65 In the first case, pending the constitution of a competent arbitral tribunal under Annex VII of the LOSC, Argentina submitted to ITLOS a request pursuant to Article 290(5) for a single provisional measure: "that Ghana unconditionally enables the Argentine warship Frigate ARA Libertad to leave the Tema port and the jurisdictional waters of Ghana and to be resupplied to that end." 66 The ARA Libertad is a training vessel of the Argentinian Navy that was on a cadet-training trip when it was seized by Ghana's authorities at the port of Tema. 67 Argentina considered that the detention of the frigate had violated Articles 18(1)(b), 32,87 (1)(a), and 90 of the LOSC. 68 Consequently, Article 292 was not available. Recognising the gravity and urgency of the situation, 69 the ITLOS unanimously prescribed that "Ghana shall forthwith and unconditionally release the frigate ARA Libertad." 70 The Tribunal based its order on the immunity of warships as guaranteed by both Article 32 of the LOSC and customary international law. 71 Similarly, the order for the release of the Arctic Sunrise and its crew was adopted two months after the arrest of the vessel by the Russian authorities. 72 The release, however, was conditional upon the posting of a bond of 3.6 million Euro. 73 The method of calculating the amount of the bond is not in the order.
Judge Jesus, in his separate opinion, did not have reservations on the release of the vessel but rather on the release upon the posting of a bond. He stated that "this amounts to a backdoor prompt release remedy." 74 Highlighting how such a measure would consist of an unjustified interference with the pending procedure before the national courts, he added that "a bond imposed as a condition for the release of vessel and crew in the framework of provisional measures … may not 'preserve the rights' of the detaining State in cases in which the imposed or imposable penalties may involve imprisonment terms which, under the applicable domestic law, are not convertible into monetary penalties." 75 Judge Kulyk shared this reasoning and emphasized how "the Request for provisional measures has lost its object" and that the Tribunal was meant to deal with "a request for prescription of provisional measures to preserve the respective rights and not with the prompt release procedure." 76 The Arctic Sunrise Case raises a series of questions as to whether there is a need to clarify the rules for release of vessels and crews ordered outside of Article 292 of the LOSC. The separate opinions of Judges Jesus and Kulyk draw attention to how the release of a vessel and its crew interferes with the ongoing investigations and proceedings at the domestic level and, for this reason, arguably should be limited to those situations explicitly provided for under the applicable international law. Judge Jesus does suggest that a tribunal could prescribe the release of a vessel upon the posting of a bond as a provisional measure when such a possibility is provided for by the domestic legal system in relation to the offense allegedly perpetrated by the vessel and its crew. 77 This approach would also allow the competent tribunal to rely on the applicable domestic law to set a reasonable bond, as ITLOS has been doing in the prompt release cases described in the preceding.

Concluding remarks
The ITLOS forms part of the institutional apparatus created by the LOSC. Its functions are not only those of settling disputes among states parties, but also of regime maintenance. 78 The prompt release procedure is emblematic of such a function. It aims at protecting the balance between the interests of flag states/the fishing industry and the sovereign rights the LOSC has granted to coastal states. The prompt release procedure can be activated even before a dispute between the coastal state and the flag state emerges. But, as discussed in the preceding, the balance between these interests needs a new equilibrium in light of the developments that have occurred in particular in the field of environmental protection. 79 Another point for further discussion is the relationship between ITLOS and the domestic legal order of the detaining state. The release of a vessel and its crew directly impacts the ongoing procedure at the national level. This is even more evident in an instance in which the release has been requested in a procedure for the prescription of provisional measures. To institutionalize the relationship between the legal orders through the creation of a preliminary procedure, as suggested by Gallala,80 is surely an interesting proposal. Lastly, the recent cases analyzed in the fourth part of this contribution highlight how the procedure of provisional measures may also be used to secure the release of a vessel beyond the circumstances contemplated by Article 292. 81 Some have expressed concerns that are understandable, given the regime maintenance function of ITLOS. 82 3. LOSC, supra note 1, Article 73(1)-(2): "The coastal State may … take such measures, including boarding, inspection, arrest and judicial proceedings … to ensure compliance with the laws and regulations adopted by it …. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security." 4. Ibid., Article 220(6-7): "Where there is clear objective evidence that a vessel navigating in the [EEZ] or the territorial sea of a State has … committed a violation … resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State …, that State may … institute proceedings, including detention of the vessel ….
[T]he coastal State if bound by [requirements for bonding or other appropriate financial security] shall allow the vessel to proceed." 5. Ibid., Article 226(1)(b): "If the investigation indicates a violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment, release shall be made promptly." 6. In The  . In other words, as a problem-solving tool law has its limits". 22. In the specific case of the Volga, the Australian request might seem excessive as it entailed the payment by the owner of the ship of 1 million Australian dollars to guarantee the carriage of the vessel by VMS. These requirements consisted of a "good behaviour bond" in order to prevent the arrested vessel from committing future violations. The ITLOS concluded that such a "good behaviour bond" is not consistent with LOSC Article 73 (2)  30. In his dissenting opinion in the Volga Case, supra note 20, para. 19, Judge ad hoc Shearer highlighted the fact that Fishing companies are highly capitalised and efficient, and some of them are unscrupulous. The flag State is bound to exercise effective control of its vessels, but this is often made difficult by frequent changes of name and flag by those vessels. It is notable that in recent cases before the Tribunal, including the present case, although the flag State has been represented by a State agent, the main burden of presentation of the case has been borne by private lawyers retained by the vessel's owners.