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LaGrand

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman  and
Vincent P. Bantz
Bernard H. Oxman
Affiliation:
University of Miami School of Law
Vincent P. Bantz
Affiliation:
University of Miami School of Law
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Abstract

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Keywords

Law of the Sea Conventionprompt release proceedingsjurisdictionnationality of shipfisheries enforcementconfiscation—exceptions to compulsory jurisdiction
Type
International Decisions
Information
American Journal of International Law , Volume 96 , Issue 1 , January 2002 , pp. 219 - 225
Copyright
Copyright © American Society of International Law 2002

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References

1 The master was Spanish, and the crew, Spanish and Chilean. The International Tribunal of the Law of the Sea (Tribunal) summarized the facts in paras. 32–53 of its decision, “Grand Prince” (Belize v. Fr.), Judgment, ITLOS Case No. 8 (Apr. 20,2001), at <http://www.itlos.org/case_documents/2001/document_en_88.pdf> [hereinafter Judgment]. The judgments and other case materials of the International Tribunal for the Law of the Sea are available online at the Tribunal’s Web site, <http://www.itlos.org>.

2 UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 292, 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafterConvention].

3 The vote was 12–9. The majority comprised President Chandrasekhara Rao, Vice-President Nelson, Judges Kolodkin, Park, Bamela Engo, Mensah, Anderson, Wolfrum, Laing (a national of Belize), Treves, and Ndiaye, and Judge ad hoc Cot (chosen by France). In dissent were Judges Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson, and Jesus. Judgment, supra note 1, para. 95.

4 With respect to the questionable requirement of notification upon entry into the exclusive economic zone, see case report on the “Camouco” case at 94 AJIL 713, 715 (2000).

5 See Judgment, supra note 1, para. 42. During the oral proceedings, however, the applicant stated that the vessel “had no time to fish because it was caught on the same day it entered the zone.” Verbatim Record, Apr. 6, 2001, Doc. ITLOS/PV/01/3, at 4.

6 FF 6.55957 = € l . In requiring that the bond be posted as cash, certified check, or bank draft, the court ignored the International Tribunal’s determination in “Camouco”and “Monte Confurco” that a bank guarantee is sufficient. In other respects, however, the court seems to have learned from the Tribunal’s rejection of the bond fixed by the French courts in those cases. It explained its reasons for fixing the bond and referred to both the Convention and the reasoning of the Tribunal in “Saiga “and “Camouco. “Following the Tribunal’s lead, the court’s judgment even refers to the requirement that the bond be “raisonnable” although the French text of Article 73 (2) of the Convention is inexplicably aberrant at this point and uses “suffisante.” See M/V “Saiga” (St. Vincent v. Guinea), Prompt Release, ITLOS Case No. 1, para. 82 (Dec. 4, 1997), reported at 92 AJIL 278 (1998); “Camouco” (Pan. v. Fr.), Prompt Release, ITLOS Case No. 5 (Feb. 7, 2000), reported at 94 AJIL 713 (2000); “Monte Confurco” (Seych. v. Fr.), Prompt Release, ITLOS Case No. 6 (Dec. 18, 2000), para. 93.

7 See Judgment, supra note 1, para. 50

8 Verbatim Record, Apr. 5, 2001, Doc. ITLOS/PV/01/2, at 9.

9 Article 292(3) provides, in pertinent part, “The 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.” France argued, “In the instant case, the Tribunal could not order France promptly to release the Grand Prince upon the posting of a bond or other guarantee.” Observations of the French Government, at 2 (on file with authors). If the Tribunal were to do so, it would “be interfering in the very substance of a penal proceeding which has been decided by the competent French jurisdiction, which is expressly ruled out by the provisions of article 292 itself.” Id.

10 Observations of the French Government, supra note 9, at 3; Verbatim Record, supra note 8, at 15–16. The French declaration is at <http://www.un.org/Depts/los/convention_agreements/convention_decIarations.htm>.

11 Several judges in the majority commented separately on these issues. Judge Anderson questioned whether they could be decided in prompt-release proceedings. Judgment, supra note 1, Sep. Op. Anderson, J. Judge ad hoc Cot considered that an accusation of fraud was a serious one and that it was not justified by the facte; expeditious penal proceedings were not a violation of Article 292, but an application of its spirit, since they help to avoid undue immobilization of the vessel. Id., Decl. Cot, J. ad hoc, paras. 5–7. The late Judge Laing considered that the confiscation of a vessel, even if valid under national law cannot, per se, be accepted by an international adjudicatory body if, in intent or effect, it would exclude the jurisdiction of that body or extirpate rights or an entire remedial scheme. Id., Sep. Op. Laing,J., para. 10.

12 Judgment, supra note 1, para.77. The Tribunal cited Appeal Relating to the Jurisdiction of thelCAO Council (Ind.v. Pak.), 1972ICJ REP. 46,52 (Aug. 18), and M/V “Saiga” (No. 2) (St. Vincent v. Guinea) Judgment, 1TLOS Case No. 2, para. 40 (July 1, 1999), reported at94 AJIL 140 (2000).

13 Judgment, supra note 1, para. 67.

14 Id., paras. 67–70.

15 Id., para. 72. France did not argue that it relied on the note from Belize or that the note otherwise created an estoppel. The proces-verbal d’interpellation of January 11, 2001, states that the vessel was flying the flag of Belize. The proces-verbaux of seizure prepared by the regional and departmental director of maritime affairs on January 11, probably in light of the January 4 note from Belize, state that the vessel was flying the flag of Belize when arrested, but was subsequently deleted from Belizean registry. The January 23judgment of the criminal court states that the vessel was flying the flag of Belize.

16 Judgment, supra note 1, para. 74.

17 Id., paras. 84, 86.

18 Id. Judge Laing (a Belizean national) concluded that the IMMARBE letter and certification were “extra-legal accommodations being afforded, for whatever they were worth, to the ship owner in its effort to obtain relief from confiscation.” Id., Sep. Op. Laing, J., paras. 5–6. Judge Wolfrum took the position that registration cannot be maintained solely to preserve the right to institute prompt-release proceedings under Article 292. Id., Decl. Wolfrum, J., para. 3.

19 Judgment, supra note 1, para. 85.

20 Id., para. 87. Vice-President Nelson was of the view that Foreign Ministry statements of official government position communicated to another government are binding “or at least must be of high persuasive value.” Id., Decl. Nelson, V.-P.

21 Judgment, supra note 1, paras. 76, 93.

22 Id., Diss. Op. Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson, Jesus,JJ., paras. 3, 5, 10, 14, 16.

23 Id., para. 15. Judge Treves pointed out that in the context of prompt-release proceedings, the wrong is not the detention, but the breach of the duty to release promptly on reasonable bond. Id., Sep. Op. Treves, J., para. 1. No distinction necessarily arises on the facts of this case between the nationality of the vessel at the time of the alleged wrong and its nationality at the time of filing the application. Although the Grand Prince was arrested on December 26, 2000, the decisions of the French courts on January 12, January 23, and February 22, 2001, were rendered after the events that cast doubt on the nationality of the ship—namely, the expiration of the provisional patent (December 29, 2000) and the note from Belize (January 4, 2001). See generally Wyler, Eric, La Regle Dite De La Continuite De La Nationalite Dans Le Contentieux International (1990)CrossRefGoogle Scholar.

24 Ordinarily, the Convention provides only for compulsory arbitration unless both the applicant and the respondent have filed declarations accepting thejurisdiction of the International Court ofjustice or the Tribunal, which was not the case here. Convention, supra note 2, Art. 287. Article 292 permits applications for prompt release to be made to the Tribunal without regard to these declarations.

25 See generally Abi-Saab, Georges, Les Exceptions Preliminaires Dans La Procedure De La Cour Internationale 206–13 (1967)Google Scholar.

26 One might note in this context that in U.S. federal courts, diversity of citizenship of the plaintiff and defendant is regarded as a question of subject-matter jurisdiction that cannot be waived. See U.S. Const. Art. III, §2; Fed. R. Crv. Pro. 12(h) (3); Capron v. VanNoorden, 6 U.S. (2 Cranch) 126 (1804).

27 Judgment, supra note 1, Diss. Op. Caminos et al., JJ., para. 2. See infra note 29.

28 M/V “Saiga” (No. 2) (St. Vincent v. Guinea), Judgment, ITLOS Case No. 2, para. 40 (July 1, 1999).

29 In the cases involving the M/V Saiga—-the first two for the Tribunal—it did not question nationality proprio motu either in the prompt-release proceedings or in connection with the subsequent request for provisional measures. M/V “Saiga” (St. Vincent v. Guinea), Prompt Release, ITLOS Case No. 1, para. 82 (Dec. 4, 1997); M/V “Saiga” (No. 2) (St. Vincent v. Guinea), Provisional Measures (Order), ITLOS Case No. 2 (Mar. 11, 1998). The question of a lapse in registration was not raised by the respondent until it objected to admissibility during the second stage of the second case arising out of the same incident; at that stage the Tribunal had jurisdiction over the merits predicated on a special agreement, including challenges to the legality both of the arrest and of the use of force resulting in personal injury. M/V “Saiga” (No. 2) (St. Vincent v. Guinea) .Judgment, ITLOS Case No. 2, para. 40 (July 1,1999), paras. 44–54. St. Vincent and the Grenadines maintained at all times that it was the flag state, and issued a permanent certificate of registration two months after the expiration of the provisional certificate. Id., paras. 67–74. That did not occur in the instant case: the owner was planning to reflag the vessel in Brazil at the time it was arrested, and the authorities stated that they were awaiting the outcome of the case to decide on deregistration. Judgment, supra note 1, paras. 33, 70, 74.

30 The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Nov. 23,1993, in Food and Agriculture Organization and Division of Ocean Affairs and the Law of the Sea, United Nations, International Fisheries Instruments with Index 41, UN Sales No. E.98.V.11 (1998), states in its preamble:

[T] he practice of flagging or reflagging fishing vessels as a means of avoiding compliance with international conservation and management measures for living marine resources, and the failure of flag States to fulfil their responsibilities with respect to fishing vessels entitled to fly their flag, are among the factors that seriously undermine the effectiveness of such measures.

See also id., Art. 3. At the time of the case, this agreement had been accepted by the European Union but not Belize, and was not yet in force. See <http://www.fao.org/Legal/default.htm> (visited Sept. 21, 2001).

31 Judge Anderson observed that the applicant’s agentwas “not well placed, as a non-Belizean lawyer in private practice in Spain, to explain to the Tribunal the seeming inconsistencies in the statements of different government departments and agencies in Belize.” Judgment, supra note 1, Sep. Op. Anderson, J., at 1. While acknowledging the special nature of prompt-release proceedings, Judge ad hoc Cot worried about the designation of a private attorney as agent; the Tribunal needs to have reliable information on the legal position of the flag state. He also questioned the incentives of private lawyers. Id., Decl. Cot, J. ad hoc, paras. 13–14. These observations seem to assume the traditional posture of the state as applicant. In prompt-release proceedings, however, the application may be brought “on behalf of” rather than “by” the flag state, rendering the state (if it wishes) only the nominal party. See Oxman, Bernard H., Book Review!, 95 AJIL 731, 733–34 (2001)Google Scholar; Oxman, Bernard H., Observations on Vessel Release Under the United Nations Convention on the Law of the Sea, 11 Int’l J. Marine & Coastal L. 201, 211 (1996)Google Scholar. The question of private attorneys has arisen in other contexts. Saint Lucia was allowed to be represented by private advisers in oral hearings before the WTO Appellate Body, see European Communities—Regime for the Importation, Sale and Distribution ofbananas, WTO Doc. WT/DS27/AB/R, paras. 10–12 (Sept. 9, 1997), but the panel below had refused to do so, notably on the ground that the common use of private attorneys would put an economic burden on developing countries, European Communities—Regime for the Importation, Sale and Distribution of Bananas, WTO Doc. WT/DS27/R/USA, paras. 7.10-. 12 (May 22, 1997).

32 Judgment, supra note 1, Diss. Op. Caminos et al., JJ., para. 17.

33 As Judge Anderson noted:

The [Food and Agricultural Organization’s] publication entitled “Coastal State Requirements for Foreign Fishing” (FAO Legislative Study 21, Rev. 4) states (section 5) that: “In addition to fines, the vast majority of countries empower their courts to order forfeiture of catch, fishing gear and boats. In a few cases, forfeiture of vessels is automatic, even on the first offence.” The accompanying Table E, headed “Penalties for unauthorized foreign fishing,” lists over 100 jurisdictions, most of them States Parties to the Convention, which provide for forfeiture of the vessel used in unauthorized fishing activities. Id., Sep. Op. Anderson, J., at 4 n.3. The most recent revision of the FAO document (Rev. 5; 1996) is available online at <http://www.fao.org/docrep/V9982E/v9982e00.htm>.

34 See supra note 11 and accompanying text.

35 See supra notes 21–23 and accompanying text.

36 “Camouco” (Pan. v. Fr.), Prompt Release, ITLOS Case No. 5, para. 67 (Feb. 7, 2000); “Monte Confurco” (Seych. v. Fr.), Prompt Release, ITLOS Case No. 6, para. 76 (Dec. 18, 2000).

37 Convention, supra note 2, Art. 230(1). But see infra note 38.

38 Convention, supra note 2, Art. 230(2).

39 “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.” Id., Art. 229.

40 Presumably, failure to demand prompt release at some point may constitute a waiver of the right or of the Article 292 remedy. The “Camouco “ case did not address the legal issues that such delay might pose where there has been a finaljudgment. See “Camouco,”paras. 51–54.

41 There is no comparable right to exclude jurisdiction with respect to arrests of foreign ships for pollution violations.

42 See “Camouco,” Prompt Release; “Monte Confurco,” Prompt Release.

43 Those arguing that such a declaration may preclude jurisdiction in prompt-release proceedings would likely argue that the failure to release is itself an exercise of enforcement powers. Those arguing that it does not might point out that Article 73 expressly excludes from coastal state enforcement rights the power to refuse to release promptly on reasonable bond, and that Article 292, apart from the fact that it nowhere uses the word “dispute,” exceptionally grants compulsoryjurisdiction to the Tribunal to enforce the duty of prompt release and, in doing so, distinguishes the question of prompt release on reasonable bond from disputes regarding the legality of the arrest or prosecution.

44 See Judgment, supra note 1, para. 60; Verbatim Record, supra note 8, at 15–16.

45 A discussion in the context of U.S. constitutional adjudication of “the techniques for not deciding, when a decision would be improvident for the nation,” as Harry Wellington puts it in his foreword (at p. x), can be found in chapter 4, “The Passive Virtues,” of Alexander M. Bickel’s celebrated book, The Least Dangerous Branch 111–98 (2d ed. 1986).