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International Tribunal for the Law of the Sea

The "Camouco" Case (Panama v. France)

Application for Prompt Release (February 7, 2000)

In September 1999, French authorities arrested a fishing vessel licenced in Panama - the Camouco - which had been observed fishing in the EEZ of the Crozet Islands and which had on board Patagonian toothfish, on charges of: 1) unlawful fishing in the Crozet Islands' EEZ; 2) failure to declare entry into the EEZ while having six tons of frozen toothfish on board; 3) concealment of the vessel's markings while flying a foreign flag; and 4) attempted flight to avoid verification by the French maritime authority. The Camouco's Master was charged and put under court supervision at Saint-Denis.

In October 1999, the court of first instance at Saint-Paul confirmed the arrest of the Camouco, and ordered a bond in the amount of 20 million French francs (FF) to be paid for the release of the vessel. In December 1999 the same court rejected the request of the Camouco's owner for a reduction of the amount for the bond. The Camouco's owner subsequently appealed this decision in proceedings which were still pending before the court of appeal at Saint-Denis at the time of the hearing before ITLOS.

Panama for its part brought an action before the International Tribunal for the Law of the Sea ("Tribunal") under Article 292 of the LOS Convention to have the Camouco and its Master promptly released on payment of a bond for no more than 950,000 FF. Panama alleged that under Article 73(4) France had failed to promptly notify Panama of the arrest of the Camouco, and had failed to promptly release the Camouco and its Master. Panama also alleged that provisional penal measures had been applied to the Master in violation of Article 73(3) of the Convention, which it claimed was an unlawful detention under the Convention.

Although not contesting the Tribunal's jurisdiction, France contested the admissibility of Panama's application for "prompt release" on the ground that it had been filed more than three months after the detention of the Camouco, thus creating a situation "akin to estoppel." In the alternative, France requested that the bond for the release of the Camouco be for not less than 20 million FF, as imposed by the court of first instance at Saint-Paul.

The Tribunal asserted jurisdiction under Article 292 and rejected the French objection to the admissibility of the application, holding that Article 292 of the Convention "does not require the flag state to file an application at any particular time after the detention of a vessel or its crew." The Tribunal stated that the purpose of the ten-day period for party agreement established in Article 292(1) "is to enable the parties to submit the question of release . . . to an agreed court or tribunal." The Tribunal also rejected the French objection that pending proceedings before the court of appeal at Saint-Denis precluded the application, on the ground that Article 292 provides for "an independent remedy and not an appeal against a decision of a national court."

The Tribunal recalled its holding in The M/V "Saiga" Case that the posting of a bond or other security is not necessarily a precondition for filing an application under Article 292. The Tribunal further held that, in light of expert testimony offered by the Applicant and unchallenged by the Respondent, estimating the replacement value of the Camouco to be 3,717,571 FF, and given the "overall circumstances of this case," the bond of 20 million FF imposed by the French court was not "reasonable." The Tribunal concluded therefore that the Panamanian allegation was well-founded, and ordered France to promptly release the Camouco and its Master upon the posting of a bond or other security in the amount of 8 million FF.

Judges Mensah, Laing and Ndiaye appended declarations in support of the judgment. Judge Laing stated that in the context of a prompt release action, the Tribunal "should not be unduly concerned with a detaining State's categorization of its actions under its law." In a separate opinion, Vice-President Nelson asserted that the Tribunal was obliged to take account of "illegal, uncontrolled and undeclared fishing in the Antarctic Ocean and more especially in the [EEZ] of the Crozet Islands . . . ."

Judges Anderson, Vukas, Wolfrum and Treves dissented from the majority decision. Judge Anderson argued that: 1) an international tribunal can best adjudicate when the national legal system has been used completely and exhaustively, rather than only partially; and 2) that the amount of the security ordered by the national courts did not exceed their margin of appreciation, and moreover had not been established as unreasonable. Judge Vukas contended that Panama's action was inadmissible, as Panama "did not initiate a prompt release procedure" (emphasis in original) for one-hundred days from the time of the Comouco's detention.