Law of the Sea Convention 1992 - Case Study Example

QUESTION 2: LAW OF SEA CONVENTION 1992 Introduction: The legal aspects that need to be scrutinized in this case is whether A is at liberty to prolong the detention of the ship Anna and its crew members and to demand a Bond or financial security of an alleged unreasonable sum of US $ 80,000,000 for their release . The alleged transgressions indulged by vessel of State B that need to be addressed to: 1. The alleged illegal fishing indulged in by State B within the 200 nautical miles distance of the Exclusive Economic Zone (EEZ) of State A in direct contravention of territorial jurisdiction of State A. 2. Alleged collection of subsoil samples around the coastal areas of State A without the latter's explicit permission or consent. 3. Carrying on alleged illegal fishing on the seas without a valid permit It is necessary to seek recourse to Articles 19, 73 and 292 of the United Nations Convention for Law of the Sea 1992 (UNCLOS), promulgated on November 16, 1994, in order to understand the jurisprudential aspects of this case and a solution for this solution In the decided Volga case the tribunal sought compliance for lowering of the Bond amount to be paid by Russian to Australia for violation of Australian water space. (Judgment in the Volga Case. 2003, P.14-15). This was reinforced in the recent Hoshinmaru ship case in which reasonable bond was paid by Japan to Russian Federation to secure release of fishing vessel and crew Before a legal treatise on the above matter is taken up, it may be necessary to discuss certain oceanic terms that are relevant to this study. Territorial waters could be defined to be the territorial waters extending up to 12 nautical mi (22 km) beyond a country's coast which grants it solitary fishing and mining rights in waters limited to 200 nautical mi (370 km) from its coast." (Law of the Sea. 2008). Exclusive economic zones need to be seen in the context of its rights and freedom in relation to other State(s). Any area beyond and adjoining its territorial seas under a specific legal administration made up in this Part under which the rights and jurisdiction of the State seen in relation to the rights and privileges of any other state are a subject matter that is regulated through specific provisions of this Convention. (Exclusive Economic Zone: Article 55). Further, the continental shelf comprises the sea bed and lower soil of the subsoil areas that extends beyond its territorial seas through a natural extension of its land territories. It could also be a distance of 200 nautical miles from which the breadth of the territorial seas is measured, in cases where the outer edge of the margin does not extend up to that distance. (Exclusive Economic Zone. Article 76). The above aspects are important since, by virtue of declaring an EEZ, coastal states are able to establish exclusive sovereign rights, albeit respecting rights of other States, in a 200 nautical mile jurisdiction,. This could cover fishing, mining, deep-sea exploration for natural resources, protecting deep-sea life, and other economic activities, and the coastal state has exclusive control and jurisdiction over marine resources and environmental issues occurring in its line of control. (United Nations Convention on the Law of the Sea of 10 December 1982 Overview and Full Text. 2008). The main issue that has arisen is that State A has enlisted the powers available to it under Article 73 of the UN Law of the sea Convention which relates to the enforcement of Rules and Regulations promulgated by the coastal state with regard to the protection of rights over exclusive economic zones of the state. Under this Article, it is well within the powers of a Coastal state to take such steps, including arrest, or internal seizure that may be necessary for the protection of its rights and ensure observation of the provisions of this Convention. (Exclusive Economic Zone). However, it has been categorically stated that should arrest take place, the detained vessel and its crew shall also be immediately released upon production of reasonable bond or any other kind of pecuniary security. In this case, it is seen that State A has posted a demand for US$ 80,000,000. State B has challenged the reasonableness of such a high bond, which has given rise to dispute between the Flag state and the detaining State. It would not be wrong to state that State B would not be in a position to release the required sum and State A would not release the detained vessel until the Bond is posted, or the Court or Tribunal intervenes. Article 19 of the Law of Sea Convention (LOSC), It is necessary that State B be advised regarding the legal recourses available to it. It is seen that State B could claim the right of innocent passage, in that its passage is "not prejudicial to the peace, good order or security of the coastal State." (Exclusive Economic Zone. Article19). From the point of view of State A , it is seen that the alleged trespass into its EEZ needs to be secured by bond , which state B claims to be unreasonable. It is necessary that the latter takes up the matter with ILTOS for reducing the quantum of bond or seek other form of modifications, or judicial intervention that could solve the problem. In this case it is seen that this case has been referred by State A to the International Tribunal for the Law of the Sea (ILTOS) The tribunal often needs to consider the interests of the flagship state and the detaining or coastal state while determining the reasonableness of reasonable ness of the Bond. (Brown 2003). In the context of adjudicating cases, it is seen that the ILTOS plays a very significant part in the formation of the rules that would govern the reasonableness of bond that could secure the early release of the arrested ship and its crew by State A under Article 292 of LOS Convention. In a recently decided case law, the Russian Federation had seized a Japanese fishing vessel and crew on the grounds that it had violated Russian water space. Japan referred this matter to the ILTOS which decided, on August 06, 2008 that the ship Hoshinmaru and its crew be released upon payment of 10 Million Rubles or $392,000. (UN Law of the Sea Tribunal Welcomes Release of Japanese Vessel and Crew. 2007). In order to observe the conduct of best practice, it is obligatory on the part of flagship and the detained ship that the amount demanded as bond be reasonable and in commensuration with the gravity of the alleged offence or transgression. (Jianjun 2007). In this case it is found that although the offence pertained to Ship Anna being in the exclusive economic zone of State A without license. But the bond imposed was to the tune of US $ 80 millions which seems unreasonable. Article 292 of the Law of Sea (LOS) deals with the prompt release of ship and crew members that have been detained by the Flag State. In this case, it is seen that the state A has not fully complied with the provisions of the Convention with regard to reasonableness of bond and financial security. Therefore, it is well within the rights of State B to make a submission to the Court or tribunal, within 10 days of such detention, or to a Court or Tribunal accepted by the flag state, or to the International Tribunal of Law for Sea (ITLOS). (Exclusive Economic Zone. Article 292). According to Section 292 (2), it is only the Flag ship or its representatives who could move this application to the Court or Tribunal for redressal and release. The Court or Tribunal shall only consider the release of the ship and crew and shall not interfere in the merits of the case or take a view of the case- its only interest shall be the release of the ship and its crew members. In the decided Volga case, ITLOS delivered its judgement ordering that Russian Federation pay AUS $ 1,920,000 to Australia for release of shipping vessel Volga. (Brown 2003). In case the bond money, or financial security has been deemed unreasonable by the Flag state as in this case, it is well within the powers of the Court or Tribunal to fix a reasonable bond money/financial security to be paid by the Flag state to ensure safe release of its ship and crew as was decided in Volga case. Upon furnishing of the bond or other financial security fixed 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 and its crew members. (Rao 2002). The decision in the Grand Prince case reinforces this aspect of law. Thus , it is seen that more than the legal aspects that surround the case and its factual basis, the early release of the ship and crew would be uppermost in the opinion of the Courts or Tribunals. Coming to the aspect of continental shelf, the law states that the permission of the detaining country must be taken before research or tests are carried out. As a matter of fact the consent is a pre-condition before the ship could take soil samples etc for testing etc. Therefore, it is necessary that Section 77 be adhered to which states that Nobody except the coastal right holding continental shelf has the right to seek activities without permission of the Coastal state. (Exclusive Economic Zone. Article 77). Conclusion: It is thus seen that if one were to consider the legal aspects of state A in this case, it was well within their exclusive economic zone prerogative to detain the ship and crew, but their valuation of the bond should have been after considering the surrounding facts of the case and should not have been arbitrary decided, just to seek retribution for alleged trespass into coastal state's territory. From the point of view of state B, there are three aspects to be considered: 1. Whether by accident or intent, they transgressed the territorial EEZ and continental shelf of state A for illegal fishing purposes. 2. They took samples without the expressed permission and consent of State A The matter now being sub judice, it is for the ILTOS to take the final decision on this case based on their own understanding and previously decided case laws. The intentions of the party state B needs to be taken into consideration by the Court, whether it was to act detrimentally to the interests of state A or not Based on previously decided court decisions, it is believed that the court or tribunal would be in a position to offer an equitable and just solution which would be acceptable to both state A and B , in the event this is not acceptable to either, this case would have to go up to higher authorities for hearing and verdict. It is believed that a lower financial security would be in the best interests of both state A and state B and shall end the stalemate in this case. Bibliography BROWN, Chester (2003). Reasonableness' in the Law of the Sea: The Prompt Release of the Volga. [online]. Cambridge Journal: Leiden Journal of International law. Vol. 16(3). Last accessed 14 May 2008 at: http://journals.cambridge.org/action/displayAbstractfromPage=online&aid=182259 Exclusive Economic Zone. [online]. Globelaw: International environment & transnational law of oceans. Last accessed 14 May 2008 at: http://www.globelaw.com/LawSea/ls82_2.htm#article_110_right_of_visit Exclusive Economic Zone. Article 19. [online]. Globelaw: International environment & transnational law of oceans. Last accessed 14 May 2008 at: http://www.globelaw.com/LawSea/ls82_1.htm#article_17_right_of_innocent_passag Exclusive Economic Zone. Article 55. [online]. Globelaw: International environment & transnational law of oceans. Last accessed 14 May 2008 at: http://www.globelaw.com/LawSea/ls82_2.htm#Part_V Exclusive Economic Zone. Article 76. [online]. Globelaw: International environment & transnational law of oceans. Last accessed 14 May 2008 at: http://www.globelaw.com/LawSea/ls82_2.htm#article_76_definition_of_the_contin Exclusive Economic Zone. Article 77. [online]. Globelaw: International environment & transnational law of oceans. Last accessed 14 May 2008 at: http://www.globelaw.com/LawSea/ls82_2.htm#article_73_enforcement_of_laws_and Exclusive Economic Zone. Article 292. [online]. Globelaw: International environment & transnational law of oceans. Last accessed 14 May 2008 at: http://www.globelaw.com/LawSea/ls82_5.htm#article_292_prompt_release_of_vesse JIANJUN, Gao (2007). Courts and Tribunals: Reasonableness of the Bond under Article 292 of the LOS Convention: Practice of the ITLOS. [online]. Oxford Journal: Chinese Journal of International Law: Vol. 7, No 1. Last accessed 14 May 2008 at: http://chinesejil.oxfordjournals.org/cgi/content/abstract/7/1/115 Judgment in the Volga Case. (2003). [online]. Environmental Policy and Law. Vol 33, No. 1, P.14-15. Last accessed 14 May 2008 at: https://commerce.metapress.com/content/c3qw89lqkx9ad32q/resource-secured/target=fulltext.pdf&sid=wvdj2t450qaio0qhz1o1dq45&sh=iospress.metapress.com Law of the Sea. (2008). [online]. Answers.com. Last accessed 14 May 2008 at: http://www.answers.com/topic/united-nations-convention-on-the-law-of-the-seacat=biz-fin RAO, Chandrasekhara P (2002). ITLOS: The First 6 Years. Cases Concerning Prompt Release of Vessel and Crew. [online]. Max Planck UNYB 6. Last accessed 14 May 2008 at: http://www.mpil.de/shared/data/pdf/pdfmpunyb/rao_6.pdf United Nations Convention on the Law of the Sea of 10 December 1982 Overview and Full Text. (2008). [online]. Oceans and Law of the Sea: Division for Ocean Affairs and the Law of the Sea. Last accessed 14 May 2008 at: http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm UN Law of the Sea Tribunal Welcomes Release of Japanese Vessel and Crew. (2007). [online]. UN News Centre. Last accessed 14 May 2008 at: http://www.un.org/apps/news/story.aspNewsID=23530&Cr=law&Cr1=sea Read More