Jayant Mudgal, Student of Law, Amity Law School-I
Facts ((Paras 27-42 of the Judgment, Text of the judgment can be found in Digest of International Case Law, UN Oceans Affairs and Law of the Sea, pg. 197, United Nations Publications (2007).)).
Monte Confurco, was a fishing vessel, which had flag of state of Seychelles, and was registered by a Seychellian company in 2000. It had license to engage in fishing in international waters. On August 27, 2000 it left Port Loius in Mauritius, for fishing in the Southern Seas. It had a Spanish national as the ships master. While fishing, the entire issue was focused on whether or not it was inside the Exclusive Economic Zone (hereinafter referred as EEZ) of the French territory of the Kerguelen Islands or not. On November 2000, it was surrounded by French Navy, and French surveillance frigate, because it was in the French Southern and Antarctic Territories ((French and Southern Antarctic Lands, Available at http://www.taaf.fr/The-French-Southern-and-Antarctic-Lands (accessed on 25th March 2016).)). A process verbal of violation ((It is a French term, which means a written report which is signed and which states the statement of facts))was drawn up, whereby it was written that the ship did not announce its entry into the EEZ and it has not disclosed the tonnage of fishes it was carrying. The process verbal further stated that it did not obtain prior authorization for fishing in EEZ from any French authorities also. On the same day, the ship was escorted under French surveillance to Reunion, an insular region of France located in Indian Ocean. The Regional and Departmental Director of the Maritime Affairs of Reunion drew up three process verbaux of seizure, and also moved to the court of first instance at Saint Paul, for confirmation of arrest of the vessel. The Bond for release of vessel was decided as 95,400,000FF plus the judicial costs ((Valuation of the Bond is available on para. 34 of the judgment)).
On 21 November 2000, the master of the vessel was charged and placed under court supervision along with taking away of his passport. The court of first instance however set the bond at 56,400,000FF ((Valuation of the Bond is available on para 39 of the judgment))payment of which will allow release of the vessel and the Master.
The court of first instance held as follows that vessel was in EEZ of Kerguelen Islands without prior notification or authorization and without any intimation to the district head of the nearest island. The vessel was found in possession of 158 tons of toothfish. This raised a presumption that the catch was unlawfully fished from the EEZ of Kerguelen Islands ((Para. 37 of the judgment)).
The law violated was the French law applicable to EEZ, which is as follows,
- Article 3 of Law No.83-582 of 1983
- Article 2 and 4 of Law No.66-400 of June 1966
- Article 142 of Code of Criminal Procedure
Article 3 states that competent authority can seize the vessel or boat that was fishing in contravention of laws and regulations, and it has to prepare a process verbal also which will be handed over to the Maritime Affairs department. The competent authority within 72 hours of seizing the vessel has to submit the process verbal to court of first instance. Article 2 and 4 provide a prohibition from fishing or exploitation of marine environment without notification to French authorities and also to declare the tonnage of fish held onboard. Article 4 gives penalty of 1,000,000 francs, in case there is failure to notify the entering into EEZ or to declare the tonnage. Article 142 of Code Criminal Procedure is essentially dealing with provision of furnishing bond, and guarantee ((para 43-45 of the judgment)). These provisions were also in contention in one of the recent judgment of Grand Price case ((Belize v. France List case no.8 2001-04-20 Available at http://www.ecolex.org/elis_isis3w.php?rec_id=000099&database=cou&search_type=link&lang=eng&format_name=@EFALL&page_header=@EPHAV1 (accessed on 25 March 2016).)).
Arguments of the parties
Applicants, the state of Seychelles has applied to ITLOS under Article 292(2) of United Nations Convention on Law of Sea (UNCLOS) to ((United Nations Convention on law of sea, Text available at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (accessed on 25th March 2016).))have the release of the vessel from France. They argued as follows ((para. 47-50 of the judgment));
- On November 7, 2000 they were outside the French waters and were not anywhere near the EEZ of French Kerguelen Islands.
- In order to be outside the CCAMLR ((Convention for Conservation of Antarctic Marine Living Resources 1982, Available at http://www.antarctica.gov.au/law-and-treaty/ccamlr (accessed on 26th March 2016).))region, the shortest possible route was taken by going through the EEZ, to finally reach William Banks (located on the South east of the Kerguelen islands)
- The ship was unable to notify its entry since the fax machine on board was broken and that fact has also been agreed by the French surveillance team that apprehended the ship on seas.
- There was no trace of preparation for fishing on the decks, and further the team found empty and wet factory which had inoperative freezing tunnels. Even the 158 tonnes of toothfish found was at stored at a very low temperature.
Respondents, the state of France ((Para 51-54 of the judgment)), has argued in as follows
- Breakdown of fax machine is no excuse for not notifying the entry in EEZ since the vessel was equipped with radio-telephone equipment and also INMARSAT station capable of sending and receiving telephone messages.
- The location on November 7, 2000 was inside the EEZ waters of French jurisdiction and the vessel could not have covered so much distance in the time indicated by Applicant, and they alleged that the vessel was in EEZ water of Kerguelen islands for many days before being caught.
Question of Jurisdiction ((para 56-60 of the judgment)).
Applicant states that Respondent have failed in their duty under article 73 of UNCLOS, and the ITLOS has jurisdiction under Article 292 of UNCLOS to hear the matter. Article 73(1) states that a coastal state can exercise its sovereignty within EEZ by taking measures of boarding, inspection, arrest and judicial proceedings for the purpose of enforcement of the provisions of its laws and UNCLOS. Article 73(2) also further states that the detaining state, should have a prompt release of the vessel of its crew. Under Article 292(3) it is given that without delay the Tribunal has to deal with the matter of the release of the vessel and the crew. Applicant have stated that by putting the master of the ship, under court supervision, it is violation of his personal right, it is defacto detention and Seychelles was not given proper notification of the arrest of the vessel, as required by Article 73 (4) of the UNCLOS which requires the coastal state to notify the flag state in case of the detention the vessel of the latter. But Respondent by relying on Camouco case ((Panama v. France, Judgment of 7 February 2000, para 59, Available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_5/Judgment.07.02.00.E.pdf(accessed on 26th March 2016).))of ITLOS stated that in proceedings under Article 292 of the UNCLOS, violations of article 73 are not permissible to be raised.
Judgment: Majority Opinion
Firstly, the ITLOS dealt with Article 73(2) of UNCLOS, which provides as follows, verbatim text has been quoted
“Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.”
The bond amount of 56,400,000 FF was said by the Applicant to be unreasonable, and the Respondent emphasized vehemently on how the amount was reasonable. ITLOS found that the amount was not reasonable in the light of the facts of the case. Majority part of the judgment was discussing the issue of release of the vessel and the crew, and what amounts to reasonableness of the security. It was stated by the tribunals that Article 73 is a fair balance between rights of the coastal state (detaining state) in enforcement of their laws and to ensure compliance with their laws, and on the other hand between rights of the flag state to secure the safety of their vessel and crew by, asking for a prompt release ((para 70 of the judgment)). The tribunal will see multiple factors in deciding the reasonableness of the bond, and as held in Camouco case ((Supra fn.14, para 69)), it was held that some of the non-exhaustive factors to be seen are,
- Gravity of the alleged offences
- Penalties imposed or imposable under the laws of the detaining state
- Value of the detained vessel and Cargo seized
- Amount of bond imposed by the detaining state and its form
By relying on these factors, the court stated that though because of the INMARSAT satellite phone and other communication devices, the vessel could have notified the entry, but Tribunal does not rely on the Saint Paul’s court of first instance judgment, which stated that there is a presumption that the vessel had done illegal fishing. There is no record or evidence to show that all the fishes were illegally obtained or that they were caught from the EEZ area. Though the offence concerned was with respect to conservation of natural resources, however one cannot presume that the catch, in its entirety or substantial portion of it was from the EEZ area ((para 88 of the judgment)). Even the valuation done by the Respondent of the vessel was not seen to be accurate. So the amount was reduced substantially to 18,000,000FF ((For evaluation of the security amount see para 93 of the judgment)). It was further held by ITLOS that France had failed in its duty under Article 73(2) of UNCLOS, and order immediate release of the master of the vessel and the vessel, upon bond or other financial security being deposited.
The majority judgment has been criticized, since though it stats that Article 73(2) is for the purpose of reconciling conflicting claims, but does the judgment actually do so is a matter of analysis. Though the judgment clearly states that ITLOS does not sit in appeal against the domestic court’s jurisdiction but still the question of determining unreasonableness is based on the finding of the domestic court. There has been difference opinion by certain judges, in whose opinion the majority hasn’t been able to appreciate the situation correctly. Judge Anderson, in his dissenting opinion stated that judgment should have been in favor of France, and the facts should have been seen in light of coastal state’s duty to protect their resources, to curb illegal fishing and costly surveillance equipments ((Dissenting Opinion of Judge Anderson, Available at http://www.worldcourts.com/itlos/eng/decisions/2000.12.18_Seychelles_v_France.pdf(Accessed on 26th March 2016).)). From an environmental perspective this seems to be a good interpretation, and an incentive for all countries to comply strictly with the law of the sea, and to preserve the sanctity and respect of the jurisdictional limits of other states. One more criticism of the judgment is that the tribunal has over looked the role of bond in the enforcement process of the laws of the detaining state (i.e. France), since bond is the guarantee that the amount of fine that the court will eventually impose is recouped ((Alex G. Oude Elfernik, Donald Rothwell (ed.) Oceans Management in 21st Century: Institutional Frameworks and responses, pg. 286 Martinus Nijhoff Publishers (2004).)). The same argument of the bond amount being the maximum was taken up in Volga case by Australia ((Russian Federation v. Australia ITLOS Case No. 1, ICGJ 344 (ITLOS 2002) Available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_11/Judgment.Volga.E.pdf (Accessed on 26th March 2016).)). It also happens that after the release of the vessel and master, the coastal state is in a disadvantaged position since the fact that the ownership of the vessel, if actually conducting the business of illegal fishing, is often concealed by layers of different complex corporate structures, therefore, it becomes very difficult for coastal state to recoup the costs, since the real ownership remains hidden ((Supra fn.20, p. 287)).
Similarly, this judgment has been criticized by Judge Mensah, as to how the ITLOS has not appreciated correctly the facts. In his dissenting opinion he quotes that majority opinion proceeded on the basis that the information before the court was not consistent with information before the tribunal ((para 86 of the judgment)). However, it is true that international tribunals have a wide discretion in assessment of evidence, but this also shouldn’t be stressed too far ((Tafsir Malik Ndaiye, Rudiger Wolfrum (ed.) Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas Mensah p.342, BRILL (2007).)).
Concluding, it can be said that this judgment is one which is criticized by academic community, and it needs to be seen that whether ITLOS will in future take a different route or not, from its current stance.