Sea Legal Analysis - Case Study Example

In this dispute, A believes that it should be granted financial security because of the International Laws that were broken by B. Article73 of the UN Convention on the Law of the Sea states that “the coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention” (Part V). What this means is that State A has the right to withhold State B’s ship and that “arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security” (Part V). Therefore, State A believes that it has the right to keep the ship until State B comes up with $80,000,000 in reparations. This Convention also states that State A would have the right to pursue any legal avenues that it deems necessary in order to maintain its own sovereignty, which is threatened by another country taking resources from its sea. State B, on the other hand, disputes the fact that $80,000,000 is a reasonable amount of money to pay for this offence. Despite the fact that State B knew full well that it was breaking the law, since this is a clear violation of the Convention, State B also does not believe that the offence is severe enough to warrant the penalty that has been imposed. State A is now taking the case to the International Tribunal for the Law of the Sea in order to have a verdict rendered. As both state should know, a state’s Exclusive Economic Zone usually expands a distance of 200 nautical miles from the state’s coast. While there are exceptions, such as when a two EEZs overlap, there is no reason to believe that this is the case in this particular situation. If an overlap had occurred, it would be up to the states to come to a solution before this happened, with the state that is closest to where the dispute took place usually having control over the region. The EEZ includes all marine life that is found within the zone, so any fish that State B caught were, in fact, the property of State A. Also, any samples that were taken from the subsoil in this dispute are also the property of State A. Because of this, State A was well within its rights to arrest the crew and impound the vessel. Despite this, the crew and vessel must be released promptly once an agreement on the financial security is reached. This, however, has not happened as of yet and so State A can legally hold the vessel at this time, but the crew should be released, since “Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment” (Part V). This does not include the vessel, however, so the vessel can be held until an agreement is reached. Since the countries have not yet been able to reach an agreement on the amount of money that the penalty should be, the International Tribunal for the Law of the Sea will probably have to get involved in order to ensure that this situation does not escalate. The problem is that the amount of money that is being asked of State B by State A is a ridiculous amount for the crime that was committed. While there has been no argument regarding the legality of the vessel’s actions, the question appears to be whether or not $80,000,000 is a reasonable amount. Many factors must be taken into account before this can be decided, however, as it will depend on how the events will impact the two states. If the actions of State B will have a major impact on the economy of State A, then the penalty imposed should be quite a bit higher than if it did not have a significant impact. Likewise, there should be an examination of how this decision will impact State B economically. Also, if State B is a landlocked country, it is permitted access to the Sea and there is a grey area regarding the EEZs as they pertain to these landlocked countries. A solution to this problem would be to come to a conclusion on a more reasonable amount of money to be paid by State B to State A. For the offence committed, assuming that it was just a one time offence, $80,000,000 does appear to be quite high. At the same time, however, this amount of money would act as a deterrent for future States if they consider breaking any Law of the Sea. Since that amount of money is very high, something must be done in order to create a more reasonable amount for State B to pay. In order to find this amount, it is possible to look at cases from the past in order to reach a statute on this type of situation. In 1999, a fishing vessel called Camouco, which sails under Panama’s flag, was arrested by a French frigate for fishing in France’s exclusive economic zone off the coast of the Crozet Islands. The vessel and the crew were then withheld until financial security was provided. The Tribunal for the Law of the Sea was requested to call for the release of the ship and its captain, as the crew were promptly released. France, however, refused to do so until 20,000,000 French Francs (approximately $3,000,000 US) were paid by Panama. Panama, in return, believed that the vessel should be released without this bond being paid and that France should have to pay for the legal proceedings and the money lost by having the ship impounded. In the end, it was rules that the amount of money that was requested by France was not reasonable and, therefore, the amount was lessened to 8 million French Francs. This amount was based on the worth of the vessel and the worth of the cargo onboard. Since it is unlikely that State B’s ship was worth anywhere close to $80,000,000, this amount would not be deemed reasonable by the International Tribunal. Therefore, a new amount would have to be agreed upon based on the amount of money the vessel was worth and how much the cargo on the ship was worth. Also factored into this amount would be the amount of fish that were caught in State A’s waters. This would be somewhat difficult to estimate, so the Tribunal would have to come up with an educated guess based on the information that was found. All of this is because of a previous ruling by the Tribunal where it determined that “the criterion of reasonableness encompasses the amount, the nature and the form of the bond or financial security’ and that the ‘overall balance of the amount, form and nature of the bond or financial security must be reasonable‘” (International Tribunal for the Law of the Seas). The reasonability is based on “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; and The amount of the bond imposed by the detaining State and its form“ (International Tribunal for the Law of the Seas). Once an amount of the bond to be paid is determined, the vessel should be immediately released to State B. The amount of this bond should be significantly less than the amount that was requested by State A, unless something of significant value is found on the ship that was recovered in State A’s seas. Also, a warning should be given to State B that if this is to occur again, that the bond levied will be significantly higher. State A was well within its rights to hold State B’s vessel until a bond was paid, as this is outlined in the Law of the Sea, but the amount of money that they were requesting as bond was much too high to be considered reasonable. It is occurrences such as these that the Tribunal was implemented for, as these disputes could become much more serious if there was not a committee to intervene. This is a case where both countries were in the wrong, which would make it very difficult to solve otherwise. State B was in the wrong for entering into State A’s EEZ, but State A was also wrong for essentially hold State B’s vessel for a ransom of an unreasonable amount. The purpose of these laws is not to hold vessels for a ransom, but rather to reach conclusions in a non-violent manner. If the Tribunal is able to come to a decision that is acceptable by both parties, it will have done its job by avoiding an ongoing conflict between the two states. Works Cited International Tribunal for the Law of the Sea. "Press Release: TRIBUNAL DELIVERS JUDGMENT IN THE “CAMOUCO” CASE (Panama vs. France)". ITLOS. 7 February 2000. Viewed 30 May 2008. http://www.itlos.org/start2_en.html UNCLOS. "Part V". Viewed 30 May 2008. http://www.admiraltylawguide.com/conven/unclospart5.html Read More