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The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea

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The proceedings for the prompt release of vessels set out in Article 292 of the Law of the Sea Convention are independent from domestic as well as from other international proceedings. The dispute consists in a disagreement between the parties when a ship flying the flag of a State Party has been detained by another party in violation of the provisions of the Convention for prompt release of vessels upon posting of bond or other financial security. These provisions are Articles 73(2), 220(6) and 220(7), and 226(b) and (c). It is argued that the prompt release proceedings can be resorted to also when the vessel has been detained in contravention to a provision of the Convention prohibiting detention. This might make the proceedings relevant for detention in violation of the 1995 Convention on Straddling Fish Stocks. The proceedings start with an application for release, which may be submitted by the flag state or on its behalf, and have to meet two requirements: reaching a decision expeditiously and ensuring that both parties have a fair chance to present their case. The case will in principle be heard by the full Tribunal even though it may be expedient to formulate rules that permit a Chamber to hear it, without jeopardizing the applicable principles. A hearing is the fulcrum of the proceedings. The decision of the Tribunal-which seems to meet the requirements of a "judgment"-brings the proceedings to a close. The decision shall be final. The detaining state is bound to release the vessel promptly as soon as a bond or other financial security has been posted by the flag state. The decision is also binding as to the reasonableness of the bond or security. In determining whether a bond or security is reasonable two parameters seem essential: the value of the vessel and the amount of the damage or of the monetary penalties claimed. Other elements may, however, be relevant. They may be different according to which rule of the Convention concerning prompt release has been violated. An administrative phase comes after the decision on prompt release. It concerns the utilization of the bond or security.


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Affiliations: 1: University of Milan


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