The “Hoshinmaru” Case (Sovereign state (P) v. Sovereign state (D)

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Citation. Int’l Trib. For the Law of the Sea, ITLOS Case No. 14, Judgment (2007)

Brief Fact Summary.

The Russian Federation (D) detained the “Hoshinmaru” a Japanese registered ship, along with its crew because the “Hoshinmaru” violated a fishing license which it had earlier issued. Japan (P) applied for the ship’s release.

Synopsis of Rule of Law.

The seriousness of an offense and the degree of cooperation between the detaining nation and the nation seeking release must be reflected by the amount of security to be posted by a nation seeking the release of a fishing vessel flying its flag that has committed a reporting offense in the context of an otherwise satisfactory cooperative framework.

Facts.

The “Hoshinamaru”, a fishing ship registered in Japan with crews made up of Japanese nationals, obtained a fishing license from the Russian Federation (D) which permitted it to fish certain amounts of specified fish in its waters of exclusive economic zone of the Russian Federation (D) including 101.8 tons of sockeye salmon and 161.8 tons of chum salmon. The offense of the Japanese was that the Russians discovered sockeye salmon under the chum salmon and the master of the ship had declared 20 tons of sockeye as the cheaper salmon. Japan (D) applied to the International Tribunal for the Law of the Sea for release of the ship and its crew after they were detained. The Tribunal as part of its judgment determined the amount of the bond or other financial security that Japan (P) would have to post to secure such release.

Issue.

Must the seriousness of an offense and the degree of cooperation between the detaining nation and the nation seeking release be reflected by the amount of security to be posted by a nation seeking the release of a fishing vessel flying its flag that has committed a reporting offense in the context of an otherwise satisfactory cooperative framework?

Held.

Yes. The seriousness of an offense and the degree of cooperation between the detaining nation and the nation seeking release must be reflected by the amount of security to be posted by a nation seeking the release of a fishing vessel flying its flag that has committed a reporting offense in the context of an otherwise satisfactory cooperative framework.
The rules set forth in the Convention and other rules of international law which are not incompatible must by applied by the Tribunal in the determination of the appropriate amount, nature and form of the bond or other financial security to be posted. Russia (P) did not take the offense committed by the Japanese lightly because if they had not detected the fraudulent activities of the Japanese, the 20 tons of sockeye would have been stolen and illegally taken out of the exclusive economic zone. Hence, this justifies a bond of 22,000,000 rubles. But the Japanese asserted that the offense they committed was not fishing without license or overfishing but the falsification of the catch that the vessel was entitled to take under its license.
Although Russian (P) is right by applying and implementing such measures but the provisions of article 61 paragraph 2 of the Convention should also be taken into account to ensure through the proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. Therefore, based on these ground, the amount of security to be posted by Japan (D) should be 10,000,000 rubles, to be paid to the bank account chosen by the Russian Federation (D) or in a form of a bank guarantee.

Discussion.

The United Nations Convention on the Law of the Sea (LOS Convention) is the Convention at issue in this case. Article 73(2) of the LOS Convention stipulates that “Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.”  In this case, the depletion of marine life is taken into consideration by the flag state seeking prompt release by the posting of a reasonable security. The flag state should also serve to deter the plundering of the living resources in the sea. The other sanctions a tribunal could order might include the installation of a satellite tracking device on the detained vessel given the available technology. This is in addition to the requirement of a bond or other financial security.