|
Case note: The Grand Prince (Belize v. France) Ted L McDorman The “Grand Prince” is the latest ITLOS case concerning an application for prompt release of a fishing vessel. As with two of the previous cases, it arose from the arrest by French authorities of a vessel fishing Patagonian toothfish in French waters around the Kerguelen and Crozet islands. In contrast to the previous decisions, however, the ITLOS on this occasion determined that it had no jurisdiction to hear the dispute. This note briefly examines the background to the dispute and the judgment of the Tribunal. Introduction The “Grand Prince” was the third case before the International Tribunal on the Law of the Sea (ITLOS) arising from French arrests of vessels fishing Patagonian toothfish in French waters around the Kerguelen and Crozet islands. As with the previous two cases, the Camouco case (Panama v. France) and The Monte Confurco case (Seychelles v. France), this case was an application seeking prompt release of the fishing vessel pursuant to Article 292 of the United Nations Convention on the Law of the Sea (LOSC) with the argument being that the security required by France was unreasonable and thus inconsistent with Article 73(2) of the LOSC. Factual background The Grand Prince is a fishing vessel which was arrested in December 2000 by French authorities for (a) fishing without authorization in the exclusive economic zone (EEZ) of the Kerguelen Islands under French jurisdiction; and (b) failing to announce its entry into the French EEZ and to declare fish on board. At the time of its arrest, it was flying the flag of Belize, although the master and crew of the vessel were Spanish and Chilean nationals. The vessel was taken to Port-des-Galets, Réunion, where the gear, catch and ship’s papers were confiscated. The catch, approximately 18 tonnes of toothfish, was valued at FF 810,000, the fishing gear valued at FF 36,800, 40 tonnes of bait was valued at FF 160,000 FF and the vessel, its equipment and documents valued at FF 13 million. It was uncontested before the French local court that the Grand Prince had violated French law by entering French waters without notification and fished without authorization. The French “court of first instance” confirmed the arrest and set the security for release of the vessel at FF 11.4 million. In setting the bond, the following factors were taken into consideration:
Considering the above, the court set the bond as follows:
Ten days later the case came before French criminal court, which found the vessel guilty of the charges. In determining the penalty, the Court observed that detection of these types of offences required deployment of substantial and costly resources and that it was important to avoid repetition of such offences and to prevent offenders from profiting from their illegal acts. In the light of these consideration, the court ordered the confiscation of the vessel, its equipment and gear as well as the fishing products seized. The Master of the vessel was also sentenced to a fine of FF 200,000 and further damages were awarded to certain civil claimants. The vessel owners filed an appeal against this judgment and, pending that case, submitted an application to the court of first instance for the release of the vessel upon presentation of a bank guarantee guaranteeing the payment of the sum specified by that court. The court of first instance rejected the application, however, on the basis that it no longer had jurisdiction, because the criminal court had ordered the immediate execution, notwithstanding any appeal, of the confiscation order. On the basis of these events, Belize filed an application before the Tribunal under article 292 of the LOSC. The main arguments advanced by Belize were that, first, the security determined by the court of first instance was unreasonable as to its amount, nature or form (and suggesting that a more reasonable figure was around FF 1.35 million); and, second, that the rejection by the court of first instance of the application for release was in violation of Article 73(2) of the LOSC and that because the order of confiscation occurred only a few days after the setting of the security, this amounted to a “trick” which undermined the prompt release provisions of the Convention. France countered that the competent domestic court had dealt with the merits of the case and, therefore, an application to ITLOS for prompt release was no longer possible according to the wording of Article 292. Regarding the confiscation of the Grand Prince, France noted that Article 73 of the LOSC does not prohibit such a penalty and that confiscation was provided for in French law and in the national laws of many other countries. France noted that whatever complaint existed against the action of the French court did not deal with prompt release and, therefore, ITLOS was without jurisdiction. Jurisdiction In the event, none of the above arguments were considered, as the Tribunal determined that, on different grounds, it did not have jurisdiction. Pursuant to Article 292(2) of the LOSC, an application to ITLOS for an order for prompt release of a seized vessel may only be made by the flag State of the vessel. After examining the evidence, however, the Tribunal decided that at the time of the application the Grand Prince was, for the purposes of Article 292(2), not a vessel registered in Belize and, therefore, the Tribunal was without jurisdiction. France had not raised this issue before ITLOS as the French courts had assumed that Belize was the flag State of the Grand Prince. Nevertheless, recalling both its own case law (M/V Saiga (No. 2), Judgment if 1 July 1999, para. 40) and the case law of the International Court of Justice (Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, [1972] ICJ Rep. 46 at p. 52), the Tribunal noted that it must always be satisfied that it has jurisdiction, and must if necessary go into the matter proprio motu. As a consequence, the Tribunal possesses the right to deal with all aspects of the question of jurisdiction, whether or not they have been expressly raised by the parties. The evidence before the Tribunal consisted of communications from different departments of the government of Belize which indicated that: registration was to expire on 29 December 2000; the vessel had been or was in the process of being de-registered as of 4 January 2001; and in late March the vessel was still considered to be under the Belize flag. The majority of the Tribunal applied wording drawn from M/V Saiga Case that, regarding nationality, the conduct of a flag State “at all times material to the dispute” was the principal concern. The majority of the Tribunal determined that Belize had not acted “at all times material to this dispute” on the basis that the Grand Prince was a Belize vessel. A joint dissenting opinion was issued by 9 of the 21 judges. The opinion noted that the Rules of ITLOS allowed the Tribunal to seek more information which might have assisted in the registration determination, but that the majority declined to make such a request. Even without more information, the dissent was of the view that Belize government regarded the vessel as flying the Belize flag such that ITLOS would have jurisdiction under Article 292(2). Commentary From a dispute settlement perspective the Grand Prince Case is the second ocean dispute in succession where the relevant third party body declined jurisdiction to deal with the substance of the dispute. The other is the Arbitral Tribunal in the Southern Bluefin Tuna (Australia/New Zealand v. Japan) Case. Given that both France and Belize were looking to the ITLOS to deal with the dispute and neither had raised the “flag problem” identified by the Tribunal, the decision may cast a fog over future business and may lead commentators to suggest that ITLOS is more interested in legal technicalities than assisting states in resolving disputes. On the substantive issue of vessel nationality, the ITLOS decision can be seen as providing a new and restrictive criterion to be met by a state asserting that a vessel flies its flag. The state in question must have acted at all material times to a dispute as the flag state of the vessel. The majority decision drew this criterion from its previous decision in the M/V Saiga Case and not from any conventional or customary law source. The criterion perhaps can be justified as a necessary component of genuine link and perhaps as a necessary procedural component for standing before a third party dispute settlement body. The criterion can be seen as adding to flag states an enhanced responsibility respecting the vessels on its registry and may discourage vessel reflagging to states which have uncertain bureaucrat practices and procedures. A decision resting on inserting the criterion of a flag state acting at all material times to a dispute as the flag state into the state of registry question may have been more appropriate and defensible where the issue was fully argued before the ITLOS rather than a situation where the ITLOS took onto itself the task of defining and applying the criterion. All the majority decision dealt with was whether Belize was the flag state for the purposes of a prompt release application under article 292 of the LOSC. One is inclined to ruminate, however, whether, as a result of the ITLOS decision, the Grand Prince was under the flag of another state or, in fact, stateless. One may also view the ITLOS decision not as inserting a new criterion into the question of flag registry but on the more legalistic point of the adequacy of the evidence provided to the Tribunal. One reading of the majority decision is that Belize simply failed to bring before the ITLOS sufficient documentary evidence that the Grand Prince was indeed on the Belize registry and that the majority was disinclined to request further particulars. This more narrow reading of the majority (which draws some support from the minority decision) would restrict the importance of the Grand Prince Case in the development of a more restrictive approach to genuine link. From an environmental perspective, the “bad guy” (the vessel) was confiscated and the ITLOS did nothing to overturn this. An environmental victory can be declared and the decision can be trumpeted as a warning to other reflagged fishing vessels that they may not have diplomatic and legal protection from their selected state of registry. The environmentalist gnashing of teeth over the failure of the Arbitral Tribunal to deal with the substance of the dispute in the Bluefin Tuna Case will be foregone respecting the ITLOS Grand Prince Case’s failure to deal with the substance of the dispute. Ted L
McDorman This article is based on work to appear in the forthcoming Yearbook of International Environmental Law. |
