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Due Process in the Law of Prompt Release

Published online by Cambridge University Press:  15 May 2026

Julian Edwards Open the ORCID record for Julian Edwards [Opens in a new window]
Julian Edwards*
Affiliation:
Sessional Academic, University of Sydney Law School , Sydney, New South Wales, Australia Associate to Justice Leeming, New South Wales Court of Appeal, Sydney, New South Wales, Australia
*
Email: julian.edwards@sydney.edu.au
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Abstract

Article 292 of the United Nations Convention on the Law of the Sea (UNCLOS) establishes a procedure of limited jurisdiction, directed at securing the prompt release of detained vessels and crews upon the posting of a reasonable bond or other security. The jurisprudence of the International Tribunal for the Law of the Sea (ITLOS) has nevertheless repeatedly invoked ‘considerations of humanity’ and ‘international standards of due process of law’ in applying that procedure. This article examines the role and content of due process within the law of prompt release. It argues that due process is a necessary implication of the prompt release regime itself, arising from the object of the regime and operating within the strict limits of Article 292. Through an analysis of the Tribunal’s jurisprudence, informed by principles of international human rights law, the article identifies three domains in which due process is engaged: the timing of release, the fixing of a reasonable bond and the process by which confiscation is effected. It contends that attention to procedural fairness in these contexts neither enlarges the Tribunal’s jurisdiction nor entails review of the merits of domestic enforcement action. Rather, it gives effect to the balance struck by UNCLOS between coastal State enforcement powers and the protection of navigational freedoms.

Keywords

Law of the seaUNCLOSprompt releasedue processITLOS

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Shorter Article
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International & Comparative Law Quarterly , First View , pp. 1 - 17
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2026. Published by Cambridge University Press on behalf of British Institute of International and Comparative Law

1. Introduction

On 6 October 2025, the Marshall Islands argued before the International Tribunal for the Law of the Sea (ITLOS, the Tribunal) in The M/T Heroic Idun (No 2) that ‘the prompt release of a detained vessel and crew is expected, and, in the case of detained crew, a matter of humanitarian necessity’.Footnote 1 The invocation of humanity in the context of prompt release is familiar. In Juno Trader, the Tribunal observed that the obligation of prompt release ‘includes elementary considerations of humanity and due process of law’.Footnote 2 In Tomimaru, the Tribunal cautioned that confiscation following prompt release must not be achieved in ‘unjustified haste’ or through proceedings inconsistent with ‘international standards of due process of law’.Footnote 3 In M/V Louisa, the Tribunal stated that ‘States are required to fulfil their obligations under international law, in particular human rights law, and that considerations of due process of law must be applied in all circumstances’.Footnote 4

Those statements make plain that the mechanism of prompt release is not concerned solely with expedition. Rather, it is directed to fairness in the exercise of enforcement power: the reasonableness of the bond, the humanity of treatment and the integrity of process. The unsettled question that follows, and which this article addresses, is what substantive content should be attributed to notions such as ‘humanity’ and ‘due process’ within the law of prompt release. Prompt release proceedings are characterised by a particularly ‘narrow’ jurisdictional ambit.Footnote 5 Matters such as notification to the flag State, the use of force in arrest and the legality of the underlying domestic laws and regulations are inadmissible and lie beyond the scope of Article 292 proceedings.Footnote 6 Nevertheless, this article contends that compliance with due process constitutes a necessary implication of the obligation of prompt release, constraining the discretion of the coastal State and ensuring fairness to shipowners and detained crew alike.

This article proceeds in four parts. Section 2 outlines the legal framework governing prompt release and the balance that it strikes between the competing interests of coastal and flag States. Section 3 then examines the manner in which ITLOS has read into that framework the requirements of fairness, humanity and due process, with Section 4 clarifying the textual and contextual basis for doing so in accordance with ordinary rules of treaty interpretation. Drawing upon general principles of international human rights law, Section 5 considers the substantive content that may be attributed to ‘international standards of due process of law’ in relation to three specific features of prompt release: (i) the promptness of release; (ii) the reasonableness of the bond; and (iii) the process of confiscation. Properly understood, prompt release is not a mechanistic exercise in the posting of security, but an expression of the rule of law at sea.Footnote 7

2. Overview of prompt release

The law of prompt release, as established by the States Parties to the United Nations Convention on the Law of the SeaFootnote 8 (UNCLOS, the Convention), forms part of the equilibrium struck between the enforcement rights of coastal States and the navigational freedoms of flag States.Footnote 9 As ITLOS observed in Monte Confurco, the object of the prompt release regime is to ‘reconcile the interest of the flag State to have its vessel and its crew released promptly with the interest of the detaining State to secure appearance in its courts of the Master and the payment of the penalties’.Footnote 10 It is the combination of the substantive entitlement to release and the expedited procedural mechanism that ensures that enforcement at sea proceeds with both efficiency and fairness.

First, the substantive entitlement to release. A coastal State that detains a foreign vessel must permit its prompt release upon the posting of a reasonable bond or other security. Article 73(2) requires release where a vessel has been arrested for breaches of laws and regulations relating to the conservation of living resources in the exclusive economic zone (EEZ). Equivalent provisions appear in Articles 220(7) and 226(1)(b) concerning pollution from vessels and the investigation of foreign ships.Footnote 11 Each provision circumscribes the enforcement jurisdiction of the coastal State by affirming that detention is provisional in character and that release must follow upon the provision of adequate financial security. It is controversial whether the prompt release procedure is applicable generally in cases where detention is a violation of the Convention;Footnote 12 for example, Article 28(2) or Article 97(3).Footnote 13

Second, the procedure for enforcing that substantive entitlement. During the negotiation of UNCLOS, several delegations regarded the substantive protections as insufficient and advocated for procedural safeguards to ensure that detained or arrested vessels would be released promptly.Footnote 14 These safeguards were ultimately realised in Article 292, which establishes a procedure by which a flag State may allege that a coastal State has failed to comply with its obligation of prompt release. Jurisdiction is compulsorily conferred on international courts and tribunals identified in Article 287, with ITLOS retaining residual jurisdiction where no alternative forum has been selected.Footnote 15

The procedure is one of expedition, owed by whichever court or tribunal is seized of the application.Footnote 16 As a matter of practice, every Article 292 application to date has been heard by ITLOS, which has specified rules to give procedural effect to the obligation of expedition. An application may be submitted ten days after detention, and the Tribunal must ‘deal without delay’ with the matter, delivering its judgment within 30 days of the initiation of proceedings.Footnote 17 The Tribunal is expected to give priority to applications for prompt release above all else.Footnote 18 Article 292(3) confines the Tribunal’s competence to ‘the question of release’ and excludes consideration of the underlying merits of the case. That is not to say that the Tribunal is ‘precluded from examining the facts and circumstances’ of the question of release but, instead, that there exists a ‘limitation in prompt release proceedings on the extent to which the Tribunal could take cognizance of the facts in dispute and seek evidence in support of the allegations made by the parties’.Footnote 19 The procedure is designed to generate ‘separate, independent proceedings’Footnote 20 without any requirement of prior exhaustion of local remedies,Footnote 21 so that release may occur before domestic courts have adjudicated the substantive dispute.Footnote 22

The relationship between the substantive entitlement and expedited procedure warrants brief clarification. From the moment of detention, the substantive obligation arising under Articles 73(2), 220(7) or 226(1)(b) is owed by the coastal State to the flag State, requiring that release be effected ‘promptly’ upon the posting of a ‘reasonable’ bond or other security. Article 292 does not create a new substantive entitlement to release, but provides the procedural mechanism through which a flag State may obtain clarity as to whether the coastal State has failed to comply with its substantive obligation already owed under the Convention. In other words, the requirements that release be ‘prompt’ and that any bond be ‘reasonable’ expressed in both Articles 73(2) and 292(1) are to be read as one and the same obligation. Any failure to comply with the determination by the court or tribunal is subject to a further substantive obligation under Article 292(4), namely, that the authorities of the detaining State comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.

3. Due process in prompt release proceedings before ITLOS

The early jurisprudence of ITLOS on the operation of prompt release implied requirements of ‘due process’, albeit with a degree of caution. In Camouco and Monte Confurco, the Tribunal declined to treat alleged breaches of Article 73(3) (concerning imprisonment of crew) and Article 73(4) (concerning notification of the flag State) as independent causes of action in prompt release proceedings.Footnote 23 Nevertheless, the Tribunal recognised their contextual relevance, observing that delayed notification of the flag State could ‘have a bearing on the ability of the flag State’ to invoke Article 292 ‘in a timely and efficient manner’.Footnote 24 In Monte Confurco, Vice-President Nelson emphasised that Article 292 embodies a ‘notion of reasonableness’ designed to ‘curb the arbitrary exercise of the discretionary power granted to coastal States’.Footnote 25 Judge Laing in Camouco likewise observed that prompt release is reinforced by its ‘significant humanitarian underpinnings, ranging from the economic rights or concerns of ship owners to the civil rights or concerns of detained crews’.Footnote 26

The Tribunal articulated this position explicitly in Juno Trader, holding that ‘the obligation of prompt release of vessels and crews includes elementary considerations of humanity and due process’.Footnote 27 The invocation of ‘elementary considerations of humanity’ recalls the familiar dictum of the International Court of Justice (ICJ) in Corfu Channel, where the obligation to notify the existence of a minefield in Albanian territorial waters was grounded in ‘certain general and well-recognised principles’ such as ‘elementary considerations of humanity’ that were ‘even more exacting in peace than in war’.Footnote 28 Juno Trader concerned Guinea-Bissau’s failure to notify the flag State, Saint Vincent and the Grenadines, and its unlawful retention of crew passports, which the Tribunal noted had hindered the capacity to invoke Article 292 ‘in a timely and efficient manner’.Footnote 29 However, the Tribunal did not elaborate on the substantive content of ‘considerations of humanity’ nor indicate how those considerations shaped its assessment in the case. That indeterminacy is examined in Section 4. Instead, the Tribunal fixed the bond at €308,770 (of which €8,770 had already been paid to Guinea-Bissau) and ordered the release of the vessel and its cargo upon the posting of the balance, with the crew free to leave Guinea-Bissau without conditions.Footnote 30

The relationship between ‘due process’ and prompt release proceedings was further developed in Tomimaru in relation to the confiscation of foreign vessels. In that case, Russia had seized a Japanese fishing vessel that was subsequently confiscated by a domestic court as a penalty for illegal fishing. Russia argued that the prompt release application was moot because the vessel was no longer detained. While the Tribunal accepted that a bona fide confiscation following judicial proceedings may remove the provisional character of detention and thereby preclude the application of Article 292, it cautioned that confiscation ‘must not be used in such a manner as to upset the balance of the interests of the flag State and of the coastal State established in the Convention’.Footnote 31 It emphasised that:

such a decision should not be taken in such a way as to prevent the shipowner from having recourse to available domestic judicial remedies, or so as to prevent the flag State from resorting to the prompt release procedure set forth in the Convention; nor should it be taken through proceedings inconsistent with international standards of due process of law. Footnote 32

However, in those proceedings, ‘no inconsistency with international standards of due process of law’ was argued and ‘no allegation’ was raised to the effect that confiscation was designed ‘to frustrate the possibility of recourse to national or international remedies’.Footnote 33

Further support for the consideration of ‘due process’ in prompt release proceedings is found in M/V Louisa. The Tribunal rejected the claim under Article 73 because the detention arose from alleged cultural heritage and arms offences, rather than in relation to enforcement for the protection of living resources in the EEZ,Footnote 34 and dismissed the independent claim for breach of good faith as not itself justiciable.Footnote 35 Nevertheless, the Tribunal recorded several asserted deprivations of liberty—arrest and custodial conditions, delayed presentation to a judge and prolonged retention of passports—and noted that ‘States are required to fulfil their obligations under international law, in particular human rights law, and that considerations of due process of law must be applied in all circumstances’,Footnote 36 citing Juno Trader and Tomimaru. Footnote 37

Beyond prompt release cases, due process and human rights considerations have been infused within the general operation of UNCLOS.Footnote 38 In M/V Saiga (No 2), the Tribunal held that although the Convention does not explicitly regulate the use of force in enforcement, general international law requires that force be avoided as far as possible and, if used, not exceed what is reasonable and necessary.Footnote 39 It added that ‘[c]onsiderations of humanity must apply in the law of the sea, as they do in other areas of international law’.Footnote 40 In the Arctic Sunrise, which involved the boarding and seizure of a Greenpeace vessel, ITLOS ordered provisional measures requiring release of the crew upon the posting of a bond, implicitly recognising the ‘irreversible consequences’ of continued detention of peaceful protesters.Footnote 41 In Enrica Lexie, involving the arrest of two Italian marines in connection with the shooting of Indian fishermen, the Tribunal ‘reaffirm[ed] its view that considerations of humanity’ apply in the law of the sea, bearing in mind the grief of the families of the fisherman and the consequences that lengthy restrictions on liberty entailed for the detained marines.Footnote 42

The Tribunal’s repeated emphasis on ‘international standards of due process’ raises questions as to the precise content of those standards and how those standards are best identified. Equally, as Judge Mensah observed, these questions and standards are ‘significant’ because the Tribunal appears to have introduced ‘into Article 292 requirements that are not obviously apparent’.Footnote 43 Although ITLOS has not articulated an exhaustive definition, its usage of ‘international standards of due process’ denotes ‘the objective application of relevant criteria embodying the internationally recognized concepts of fairness, humanity and due process’.Footnote 44 As Judge Treves observed in Juno Trader, although prompt release is an obligation of result, the ‘means to obtain it are not without importance’.Footnote 45 Release, and the fixing of a bond or other security, must be achieved through procedures that respect due process.Footnote 46

4. The relationship between due process and prompt release

The juridical basis for reading the requirements of ‘due process’ and ‘considerations of humanity’ into the prompt release regime, though not expressly articulated by the Tribunal, derives from ordinary principles of treaty interpretation.Footnote 47 Article 31(3)(c) of the Vienna Convention on the Law of Treaties permits consideration of ‘relevant rules of international law applicable in the relations between the parties’, which includes recourse to international human rights law to give content to ‘due process’.Footnote 48 Such recourse serves interpretive rather than jurisdictional ends, given the ‘cardinal distinction’ between the scope of jurisdiction under Article 288 UNCLOS and the law to be applied by the Tribunal under Article 293.Footnote 49 That is to say, international human rights standards may, to the extent that they are not incompatible with the Convention within the meaning of Article 293, assist in construing and applying the provisions of prompt release;Footnote 50 the Tribunal’s jurisdiction is not thereby enlarged.Footnote 51 The Tribunal is not empowered to declare that a detaining State has violated ‘due process’ as a free standing obligation.Footnote 52 Instead, its jurisdiction remains confined to cases of ‘non-compliance with a provision of the Convention for the prompt release of the detained vessel’ and ‘on a date subsequent to the date on which the vessel was arrested’.Footnote 53 However, as the Tribunal observed in Monte Confurco, the assessment of that non-compliance ‘must be based on the Convention and other rules of international law not incompatible with the Convention’.Footnote 54

It is to be borne steadily in mind that no express term of UNCLOS employs the language of ‘due process’. Nevertheless, the obligation of prompt release, in light of its text, context and purpose, has been consistently interpreted as presupposing standards of procedural fairness.Footnote 55 To assess the rationale for such an interpretation, it is convenient to start with the text.Footnote 56 Article 73(2) provides that an arrested vessel shall be ‘promptly’ released upon the posting of a ‘reasonable’ bond. Articles 220(7) and 226(1) adopt similar formulations, providing that procedures shall ‘allow the vessel to proceed’ or that ‘release shall be made promptly’ upon ‘reasonable’ procedures or ‘appropriate’ financial security. The adjectival requirements of ‘appropriate’, ‘prompt’ and ‘reasonable’ import an objective standard external to the unilateral will of the detaining State and require an assessment of what fairness demands in the circumstances.Footnote 57 Such a reading is consistent with the broader object and purpose of UNCLOS as illustrated by its preambular language, namely, to establish a ‘legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans’.Footnote 58

Moreover, what is ‘reasonable’, ‘appropriate’ or ‘prompt’ must depend on the broader circumstances and context of coastal State enforcement.Footnote 59 Although Articles 73(3) and (4) fall outside the Tribunal’s jurisdiction in prompt release proceedings,Footnote 60 both provisions reinforce the procedural safeguards implicit in the mechanism by prohibiting imprisonment or any form of corporal punishment and requiring prompt notification to the flag State. Indeed, such procedural safeguards apply not only to detention but also to the process of enforcement: for example, the coastal State may take only such measures ‘as may be necessary’ and ‘shall not endanger the safety of navigation or otherwise create any hazard to a vessel, or bring it to an unsafe port’ and ‘shall not delay a foreign vessel longer than is essential’.Footnote 61 It would be artificial to treat the mechanism of prompt release as insulated from those broader requirements of procedural fairness, particularly where the text of Articles 73, 220 and 226 admits and invites such a construction. Read together, these textual and contextual indicators reveal that the prompt release regime is defined by objective standards of procedural fairness beyond the discretion of the detaining State; an interpretation which has been expressly endorsed by ITLOS.

5. International standards of due process applicable to prompt release

Enough has been said to show that considerations of ‘due process’ and ‘humanity’ are implied by the text, context and object of the prompt release regime. However, the precise contours of that implication remain undefined. The ICJ has repeatedly held that the obligation to afford due process under international law is inherent in the rule of law.Footnote 62 Within the architecture of prompt release, due process may be observed in three contexts: (i) the timing of release; (ii) the reasonableness of the bond; and (iii) the process of confiscation. The analysis that follows draws on general principles of law and customary norms of international human rights law applicable between States Parties to UNCLOS to elucidate how detaining States may ensure compliance with the due process obligations that animate the law of prompt release.Footnote 63

5.1. Timing of the release

The requirement that a vessel and crew be released in a ‘timely and efficient manner’ upon the posting of a reasonable bond is the most immediate procedural safeguard in the prompt release regime. The failure by the detaining State to release the vessel ‘promptly’ may constitute an internationally wrongful act either because a reasonable bond has already been posted (and no ‘prompt’ release has occurred) or because a court or tribunal has fixed the bond and ordered release (pursuant to which ‘prompt’ compliance must be effected).Footnote 64 However, neither UNCLOS nor ITLOS has defined how ‘prompt’ the release must be. During the Fourth Session of the Third UN Conference on the Law of the Sea in 1976, delegates emphasised that permitting ‘a State to detain a tanker for an extensive period of time would be extremely costly’ and that ‘a fisherman would suffer great losses if his boat were detained for a large portion of the fishing season’.Footnote 65 Judge Chandrasekhara Rao echoed this sentiment in Juno Trader, observing that the emphasis on ‘delay’ and ‘urgency’ is the ‘inevitable corollary of the concept of prompt release’.Footnote 66

The temporal threshold for ‘prompt’ release may thus be readily informed by the right of access to legal recourse without delay, which is a well-established rule of customary international human rights lawFootnote 67 and which is widely reflected in human rights treatiesFootnote 68 and law of the sea treatiesFootnote 69 alike. Indeed, customary international human rights law supports the view that what constitutes ‘promptness’ or ‘reasonable time’ must be considered in light of the complexity of the matter, the activity of the interested party and the behaviour of the administrative and judicial authorities.Footnote 70 This assessment of circumstances was expressly recognised by Judge Türk in Hoshinmaru, stating that the precise temporal requirement ‘will certainly depend on the degree of complexity of the investigations carried out by the detaining State and will thus have to vary from case to case’.Footnote 71

Other temporal indicators may be discerned from ITLOS practice. Foremost, the procedure established for ITLOS to deal with prompt release proceedings (a 10-day filing windowFootnote 72 and a 30-day judgment cycleFootnote 73) tends to suggest that ‘prompt’ release is fulfilled in days or weeks, not months. That much is reinforced by M/V Saiga (No 2), where the Tribunal held that, although release 80 days after the posting of a bond could not be regarded as prompt, several factors contributed to the delay ‘and not all of them can be said to be due to the fault of Guinea’ such that no breach was found.Footnote 74 Judge Laing identified those factors as including disagreement about the implementation of the judgment, translation difficulties, communication obstacles, the travel of party representatives and the novelty of the prompt release mechanism itself.Footnote 75 These considerations confirm that promptness must be evaluated in the circumstances of each case.Footnote 76

Comparative jurisprudence from regional human rights courts further illuminates the meaning of promptness. In Rigopoulos v Spain, the applicant was detained for 16 days following the boarding of a vessel on the high seas, over 5,500 kilometres from Spanish territory.Footnote 77 While acknowledging that such a period did not ‘at first sight appear to be compatible with the concept of “brought promptly”’, the European Court of Human Rights (ECtHR) held that exceptional circumstances existed because of the ‘considerable distance’ involved and the fact that it was ‘materially impossible to bring the applicant physically before the investigating judge any sooner’.Footnote 78 In Medvedyev v France, the ECtHR accepted that a delay of 13 days before the applicants were brought before a judge did not violate Article 5(3) of the European Convention on Human Rights, given that the vessel was on the high seas, there was ‘nothing to indicate that it took any longer than necessary to escort it to France’ and, after arriving in France, they were brought before an investigating judge within eight or nine hours, which was sufficiently prompt.Footnote 79 The Court expressly recognised that ‘any deprivation of liberty [must] be compatible with the purpose of Article 5, namely, to protect the individual from arbitrariness’ and that the maritime context ‘cannot justify an area outside the law’.Footnote 80 The overlap between the regime for prompt release and Article 5(3) was made explicit in Mangouras v Spain, which concerned the fixing of bail following the detention of the master of the Prestige after a major oil spill.Footnote 81

Several judges of ITLOS have accepted that a longer timeframe may be appropriate in the context of Article 292, reflecting both the inter-State character of the mechanism and the focus on release upon security rather than an individual right to prompt judicial review. Judge Türk in Hoshinmaru suggested that ‘a maximum period of approximately one month after the detention of a vessel and its crew would seem reasonable for the setting of the bond’ and that detention ‘would then altogether not exceed approximately two months’,Footnote 82 whereas Judge Vukas in Camouco stated that ‘[w]ithin 10 days from the time of detention, the detaining State should arrange for the release of the vessel or its crew, upon the posting of a reasonable bond’.Footnote 83 It remains clear that any undue delay will risk contravening the procedural integrity inherent in Article 292.

An additional and often overlooked aspect of due process in this context is the bilateral operation of prompt release. While the detaining State bears the primary obligation of expedition, corresponding diligence is expected of the flag State and shipowner.Footnote 84 This reflects a familiar feature of customary international human rights law in considering the conduct of detainees and their representatives when assessing the reasonableness of delay.Footnote 85 Although no fixed deadline for the filing of an Article 292 application exists,Footnote 86 the requirement for ‘promptness’ is binding on all relevant subjects. As Judge Vukas observed in Camouco, the obligation of prompt release concerns the ‘detaining State, the flag State and all those concerned with the treatment of the detained vessel and the crew, the competent courts and tribunals’.Footnote 87 In Juno Trader, Judges Mensah and Wolfrum emphasised the ‘duty on flag States and shipowners to act promptly’ because the object of prompt release ‘can only be achieved if the shipowner and the flag State take speedy action’ whether before domestic courts or through timely invocation of Article 292.Footnote 88 The bilateral character of the obligation of prompt release reinforces that promptness is a mutual duty of cooperation aimed at preventing undue deprivation of liberty.

5.2. Reasonableness of the bond

The assessment of the ‘reasonableness’ of the bond likewise implicates considerations of ‘due process’ in determining what a fair and proportionate amount is.Footnote 89 Proceedings brought under Article 292 do not constitute ‘an appeal against a decision of a national court’ on the legality of the seizure or the correctness of the charges.Footnote 90 Instead, they are guided by the ‘inherent limits of the Tribunal’s prompt release jurisdiction’ of whether the coastal State has observed its duty to release the vessel and crew upon the posting of a reasonable bond.Footnote 91 The notion of a ‘reasonable’ bond is inherently evaluative and necessarily engages both substantive and procedural considerations.Footnote 92

The Tribunal has consistently affirmed that it possesses the authority to assess the reasonableness of a bond de novo,Footnote 93 applying an objective standard that takes into account ‘all information provided to the Tribunal by the parties’.Footnote 94 In Camouco, the Tribunal articulated factors informing whether the bond is ‘reasonable’ which include, inter alia, 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, the amount of the bond imposed by the detaining State and its form’.Footnote 95 In Monte Confurco, the Tribunal clarified that this was ‘by no means a complete list of factors’ and that it is not ‘intended to lay down rigid rules as to the exact weight to be attached to each of them’.Footnote 96 In Volga, the Tribunal recognised the importance of ‘the terms of the bond or security set by the detaining State, having regard to all the circumstances of the particular case’.Footnote 97

Even though ITLOS has ‘little capacity to go beyond the immediate issue before it of whether an order for prompt release should be made’,Footnote 98 the manner in which the coastal State has treated the vessel and crew following arrest is relevant in determining whether the obligation of prompt release has been fulfilled. Within this broad assessment, three factors have emerged as particularly salient to the observance of due process.

5.2.1. Treatment of detained crews

The humanitarian purpose of Article 292 has been recognised by several members of ITLOS as informing the assessment of what constitutes a reasonable bond. In Camouco, Judge Anderson characterised the object of prompt release as the protection of ‘certain economic and humanitarian values’,Footnote 99 while Judge Laing emphasised that prompt release has ‘significant humanitarian underpinnings’ extending to the ‘civil rights or concerns of detained crews’.Footnote 100 In Juno Trader, Judge Treves observed that ‘unnecessary use of force and violations of human rights and due process of law are elements that must also be taken into consideration in fixing a bond or guarantee that can be considered reasonable’.Footnote 101 Furthermore, Judge Yanai in Tomimaru recognised that both unreasonableness and undue delay ‘will cause economic damage to the owners of vessels and humanitarian problems for their crew’.Footnote 102

The gravity of conditions experienced by the crew is part of the factual matrix against which ‘reasonableness’ is to be assessed: where detention is punitive or coercive in character, the urgency of release is heightened and a bond set at a level that the shipowner cannot satisfy without delay risks defeating the protective operation of the prompt release regime. The assessment of those conditions may be informed by customary international human rights law, guided by principles including that: (i) detaining authorities must refrain from cruel or inhuman treatment;Footnote 103 (ii) detained individuals should have access to consular and legal assistance;Footnote 104 (iii) detention conditions must respect minimum standards of treatment;Footnote 105 and (iv) detention must not be arbitrary or discriminatory.Footnote 106 That view is consistent with the Tribunal’s express observation that the ‘requirement that the bond or other financial security must be reasonable indicates that a concern for fairness is one of the purposes’ of Article 292.Footnote 107

Humanitarian considerations extend to non-financial conditions imposed upon release.Footnote 108 In Volga, the Tribunal rejected Australia’s imposition of a ‘good behaviour bond’ designed to prevent future violations, holding that it did not qualify as a ‘bond or security’ within the meaning of Articles 73(2) and 292.Footnote 109 In Juno Trader, the Tribunal found that Guinea-Bissau had violated its obligations by failing to return crew passports and thereby preventing the crew from freely leaving the jurisdiction.Footnote 110 The imposition of excessive conditions on release or bail that nullify the benefit of liberty has long been condemned by international human rights law.Footnote 111 In the context of prompt release, the introduction of non-financial conditions would considerably broaden the discretion and powers of coastal States and would inject subjectivity into the regime.Footnote 112 The right to liberty and freedom of movement are inherent in the concept of prompt release, such that conditions on release have generally been deemed unacceptable.

5.2.2. Lack of transparency

The dictates of ‘due process’ also require transparency in calculating and administering the bond. In Camouco, the Tribunal expressed concern at the failure of detaining authorities to explain the method by which bond amounts were fixed.Footnote 113 In Juno Trader, Judge Treves went further, observing that ‘late communication of charges’ and ‘uncertainty as to the procedure followed by the authorities’ could justify a finding of non-compliance with the obligation of prompt release even where the duration of detention might not, taken in isolation, appear excessive.Footnote 114 Similarly, Judge Yanai in Tomimaru stressed that ‘the prompt release procedure, including bond or other security, should be simple and transparent, so that the owners of arrested vessels and their flag States can easily understand the relevant procedures of the coastal States concerned’.Footnote 115

This emphasis on transparency is reinforced by customary international human rights law. Both international and regional human rights tribunals have emphasised that decisions affecting fundamental rights must be reasoned and communicated with sufficient clarity to those affected.Footnote 116 The ECtHR has repeatedly held that any restriction on liberty (such as pre-trial detention or the imposition of bail conditions) should be based on ‘relevant and sufficient’ reasons that are made known to the affected party, enabling them to understand and, if necessary, challenge the decision.Footnote 117 The Inter-American Court of Human Rights has likewise recognised that the right to due process includes the right to a duly reasoned decision, ensuring that individuals are aware of how and why a sanction or requirement is imposed.Footnote 118

Although the fixing of a bond does not attract the same justificatory burden as that for the arrest of the vessel (which falls outside the jurisdiction of prompt release) due to its administrative nature, the adoption of an arbitrary bond amount or opaque administrative procedures may nevertheless fall short of due process where there is a ‘complete lack of transparency and candour in an administrative process’.Footnote 119 Transparency in the calculation and administration of the bond is therefore a practical and procedural necessity within the mechanism for prompt release.

5.2.3. Lack of notice

Prompt notification of the flag State under Article 73(4) constitutes a further procedural safeguard, even though its breach does not itself found jurisdiction under Article 292. In Camouco, the Tribunal observed that the practical connection between Articles 73(2) and 73(4) is that a failure to notify the flag State may frustrate or substantially delay the operation of the prompt release mechanism.Footnote 120 This logic reflects a broader principle of international human rights law, pursuant to which any person deprived of liberty is entitled to have a third party notified of their detention.Footnote 121 By way of example, Article 36 of the Vienna Convention on Consular Relations requires that authorities inform foreign detainees of their right to consular notification, in order for the detainee’s State of nationality to assist without delay.Footnote 122 This closely reflects the prompt notification underpinning Article 73(4) and may therefore have a direct bearing on the proper assessment of the bond. Due process demands that a coastal State communicate promptly and clearly with the flag State so that the right of release may be promptly exercised.

5.3. Process of confiscation

Confiscation of a foreign vessel is also circumscribed by the ‘other relevant rules of international law, including in particular relevant provisions contained in international instruments on the protection of human rights’ including ‘fair trial and due process’.Footnote 123 This engages the doctrine of abuse of process, directed at responding to ‘certain misuses of procedural rights and instruments by a party to a dispute’Footnote 124 which has been well accepted as a general principle of international law.Footnote 125

In Tomimaru, the Tribunal accepted that confiscation fell within the competence of the coastal State, yet warned that ‘a confiscation decided in unjustified haste would jeopardise the operation of Article 292’.Footnote 126 In M/V Virginia G, Judge Kulyk cautioned that hasty or ex officio confiscation ‘would amount to the denial of due process of law and an abuse by the coastal State of the right to take necessary measures to ensure compliance’.Footnote 127 Judge Laing in Grand Prince added that even a confiscation valid under domestic law cannot be recognised internationally where ‘in intent or effect, it would exclude the jurisdiction of [ITLOS] or extirpate rights’ expressly conferred by UNCLOS.Footnote 128 As Judge Treves observed in Juno Trader, action taken in violation of due process would be ‘abusive’ and ‘cannot preclude an order for release’.Footnote 129 The extent to which this reasoning applies to any domestic measure that extinguishes the duty of prompt release remains contested, given the risk of impermissible encroachment upon the merits of domestic proceedings.Footnote 130

Protection against the arbitrary deprivation or confiscation of property is widely reflected in international human rights treaties.Footnote 131 However, inquiries into whether the confiscation occurred in pursuit of a legitimate aim or was proportionate fall outside the jurisdiction of prompt release proceedings as being contemplative of the merits. Thus, the Tribunal is entitled to consider a more minor subset of the protection against arbitrary deprivation of property, namely, the fairness of the process by which property was confiscated, allowing the affected person an opportunity to contest the measure. Several investment tribunals have observed that, in the context of expropriation, ‘reasonable advance notice, a fair hearing and an unbiased and impartial adjudicator to assess the actions in dispute, are expected to be readily available’.Footnote 132

Although international proceedings are generally not governed by the same procedural rigour of many domestic proceedings,Footnote 133 the reading of ‘due process’ into the obligation of prompt release ensures that no party gains an unfair advantage by virtue of its circumvention of procedural fairness.Footnote 134 The ECtHR has routinely held that confiscation proceedings must afford ‘a reasonable opportunity’ for a party to put their case ‘to the competent authorities for the purpose of effectively challenging the measures interfering’ with their rights as a reflection of the principle of legality.Footnote 135 In G.I.E.M. S.R.L. v Italy and Shorazova v Malta, the ECtHR particularly noted the obligation to comply with the standards of equality of arms and the adversarial principle.Footnote 136 Confiscation without affording an opportunity to contest the proceedings would fall foul of basic ‘due process’ standards, thereby upsetting the balance of interests that the regime of prompt release seeks to protect.Footnote 137

6. Conclusion

This article has argued that ‘due process’ constitutes an indispensable facet of the prompt release regime under UNCLOS. The ‘sanction for a violation of due process in the context of a detention’ has long been considered an ‘important question so far left open by ITLOS’.Footnote 138 Two issues have warranted particular clarification. The first concerns the circumstances in which due process may be considered within the narrow jurisdictional limits of Article 292. The second concerns the manner in which general principles of law and customary norms of international human rights law inform the ‘international standards of due process’ repeatedly invoked by the Tribunal.

The foregoing analysis has sought to demonstrate that, although Article 292 proceedings must remain confined to the precise question of release, they necessarily entail an assessment of whether the fixing of a bond and the timing and conditions of release were conducted in accordance with elementary requirements of fairness. That assessment does not expand the jurisdiction of the Tribunal; instead, it lies squarely within the text, context and object of the mechanism of prompt release. The jurisprudence of regional human rights courts supplies substantive guidance as to what ‘promptness’ and ‘reasonableness’ require in practice, without transmuting prompt release proceedings into a forum for adjudicating the merits of domestic enforcement action. The result is a coherent framework in which due process informs the legality of enforcement measures while respecting the limits of the Tribunal’s jurisdiction. Properly construed, the law of prompt release is informed by principles of ‘humanity’ and ‘due process’ as inherent conditions of lawful detention and release.

Acknowledgments

An earlier version of this paper was awarded the Brennan Essay Prize in Public International Law by the International Law Association in December 2025. The author is grateful to Professor Chester Brown SC, the anonymous peer reviewers and the editors of the Journal for their thoughtful comments.

References

1 M/T Heroic Idun (No 2) (Marshall Islands/Equatorial Guinea) (ITLOS, Transcript of Proceedings, Verbatim Record PV.25/C32/1, 6 October 2025) 28:30–32:00 (Sir D Bethlehem KC). This submission related to the obligation to release the Heroic Idun promptly without undue delay, which was subsequently abandoned in the final submissions.

2 Juno Trader (Saint Vincent and the Grenadines v Guinea-Bissau) (Prompt Release) [2004] ITLOS Rep 17, para 77.

3 Tomimaru (Japan v Russian Federation) (Prompt Release) [2007] ITLOS Rep 74, para 76.

4 M/V Louisa (Saint Vincent and the Grenadines v Spain) (Judgment) [2013] ITLOS Rep 4, para 155.

5 N Klein, Dispute Settlement in the UN Convention on the Law of the Sea (CUP 2005) 95.

6 C Goodman, ‘Compulsory Settlement of EEZ Fisheries Enforcement Disputes under UNCLOS: “Swallowing the Rule” or “Balancing the Equation”?’ (2023) 13 GoJIL 1, 50.

7 N Klein and K Parlett, Judging the Law of the Sea (OUP 2022) 96.

8 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS).

9 LN Nguyen, The Development of the Law of the Sea by UNCLOS Dispute Settlement Bodies (CUP 2023) 251.

10 Monte Confurco (Seychelles v France) (Prompt Release) [2000] ITLOS Rep 86, para 71.

11 IV Karaman, Dispute Resolution in the Law of the Sea (Martinus Nijhoff 2012) 41.

12 In dissent, Judges Yamamoto, Wolfrum, Park, Nelson, Chandrasekhara Rao, Vukas and Ndiaye jointly rejected the view that art 292 confers jurisdiction in respect of detention falling outside the categories of arrest specified in arts 73, 220 and 226 UNCLOS: M/V Saiga (Saint Vincent and the Grenadines v Guinea) (Prompt Release) [1997] ITLOS Rep 16, paras 24–25. However, the Tribunal decided that it was ‘unnecessary’ to ‘adopt a position on the non-restrictive interpretation’ of art 292: ibid para 73.

13 See T Treves, ‘Article 292’ in A Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Bloomsbury 2017) 1886.

14 MH Nordquist et al (eds), United Nations Convention on the Law of the Sea 1982: A Commentary (Martinus Nijhoff 1989) vol V, art 292, 66–71; R Rayfuse, ‘Standard of Review in the International Tribunal for the Law of the Sea’ in L Gruszczynski and W Werner (eds), Deference in International Courts and Tribunals (OUP 2014) 337, 340.

15 UNCLOS (n 8) art 292(1). For commentary, see Klein and Parlett (n 7) 92.

16 UNCLOS (n 8) art 292(3). See also H Lindpere, ‘Prompt Release of Detained Foreign Vessels and Crews in Matters of Marine Environment Protection’ (2005) 33 IJLI 240, 243.

17 ITLOS, ‘Rules of the Tribunal’ (adopted 28 October 1997) Doc No ITLOS/8, art 112(3), (4).

18 ED Brown, ‘The M/V Saiga Case on Prompt Release of Detained Vessels: The First Judgment of the International Tribunal for the Law of the Sea’ (1998) 22 MP 307, 310, citing Rules of the Tribunal (n 17) art 112(2).

19 Monte Confurco (n 10) para 74.

20 M/V Saiga (n 12) para 50.

21 Camouco (Panama v France) (Prompt Release) [2000] ITLOS Rep 10, para 57.

22 S Trevisanut, ‘Twenty Years of Prompt Release of Vessels: Admissibility, Jurisdiction, and Recent Trends’ (2017) 48 ODIL 300, 301.

23 Camouco (n 21) para 59; Monte Confurco (n 10) para 63.

24 Camouco (n 21) para 59.

25 Monte Confurco (n 10) 124 (Separate Opinion of Vice-President Nelson).

26 Camouco (n 21) 42 (Declaration of Judge Laing).

27 Juno Trader (n 2) para 77.

28 Corfu Channel (UK v Albania) (Judgment) [1949] ICJ Rep 4, 22. See generally N Jørgensen, The Responsibility for International Crimes (OUP 2000) 123.

29 Juno Trader (n 2) para 76, citing Camouco (n 21) para 59.

30 ibid para 79.

31 Tomimaru (n 3) para 75.

32 ibid para 76 (emphasis added).

33 ibid para 79.

34 M/V Louisa (n 4) para 104.

35 ibid para 137.

36 ibid para 155 (emphasis added).

37 Juno Trader (n 2) para 77; Tomimaru (n 3) para 76.

38 But see International Relations and Defence Committee, UNCLOS: The Law of the Sea in the 21st Century (2nd HL 2021–22, 159–I) 48–58.

39 M/V Saiga (No 2) (Saint Vincent and the Grenadines v Guinea) (Judgment) [1999] ITLOS Rep 10, para 155.

40 ibid.

41 Arctic Sunrise (The Netherlands v Russian Federation) (Provisional Measures) [2013] ITLOS Rep 230, paras 87, 93.

42 Enrica Lexie (Italy v India) (Provisional Measures) [2015] ITLOS Rep 182, paras 133–135.

43 T Mensah, ‘The Tribunal and the Prompt Release of Vessels’ (2007) 22 IJMCL 425, 439.

44 Rayfuse (n 14) 337, 353.

45 Juno Trader (n 2) para 3 (Separate Opinion of Judge Treves).

46 ibid.

47 A Petrig and M Bo, ‘The International Tribunal for the Law of the Sea and Human Rights’ in M Scheinin (ed), Human Rights Norms in “Other” International Courts (CUP 2019) 353, 365. But see M Wood, ‘The International Tribunal for the Law of the Sea and General International Law’ (2007) 22 IJMCL 351, 361.

48 The Duzgit Integrity Arbitration (Malta v São Tomé and Príncipe) PCA Case No 2014-07, Award (5 September 2016) para 207. See also T Treves, ‘Human Rights and the Law of the Sea’ (2010) 28(1) BJIL 1, 6.

49 MOX Plant Arbitration (Ireland v United Kingdom) PCA Case No 2002-01, Order No 3: Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures (24 June 2003) para 19.

50 Arctic Sunrise Arbitration (Netherlands v Russia) (Merits) PCA Case No 2014-02, Award (14 August 2015) para 198.

51 C Harris, ‘Incidental Determinations in Proceedings Under Compromissory Clauses’ (2021) 70 ICLQ 417, 423.

52 See, e.g. Jadhav (India v Pakistan) (Judgment) [2019] ICJ Rep 418, para 36.

53 Grand Prince (Belize v France) (Judgment) [2001] ITLOS Rep 17, para 1 (Separate Opinion of Judge Treves).

54 Monte Confurco (n 10) para 75 (emphasis added).

55 Juno Trader (n 2) para 77; Tomimaru (n 3) para 76.

56 Competence of Assembly regarding admission to the United Nations (Advisory Opinion) [1950] ICJ Rep 4, 8.

57 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73, 96.

58 UNCLOS (n 8) preamble. See also T Ndiaye, ‘Human Rights at Sea and the Law of the Sea’ (2019) 10 BeijingLR 261, 276.

59 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep 18, para 60.

60 Camouco (n 21) para 59; Monte Confurco (n 10) para 63.

61 UNCLOS (n 8) arts 73(1), 225, 226(1)(a).

62 Elettronica Sicula SpA (ELSI) (United States of America v Italy) (Judgment) [1989] ICJ Rep 15, para 128; Asylum Case (Colombia/Peru) (Judgment) [1950] ICJ Rep 266, 284.

63 See generally CT Kotuby and LA Sobota, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (OUP 2017); CM Quiroga and VD Contreras, ‘Right to Due Process’ in CM Quiroga and VD Contreras (eds), The American Convention on Human Rights: Crucial Rights and Their Theory and Practice (3rd edn, CUP 2022) 309, 309–426.

64 See also Treves (n 13) 1892.

65 Nordquist et al (n 14) vol V, art 292, 68; VP Bantz, ‘Views from Hamburg: The Juno Trader Case or How to Make Sense of the Coastal State’s Rights in the Light of Its Duty of Prompt Release Special Edition: The United Nations and International Legal Order’ (2005) 24 UQLJ 415, 434.

66 Juno Trader (n 2) para 4 (Separate Opinion of Judge Chandrasekhara Rao).

67 J Paulsson, Denial of Justice in International Law (CUP 2005) 177.

68 See, e.g. Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221, art 5; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123, art 7; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217, art 7; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, arts 9, 14.

69 See, e.g. International Convention for the Prevention of Pollution from Ships (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 184, as modified by the Protocol of 1978 (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 61, art 7; International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 2, ch I, reg 19(f); International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (adopted 7 July 1978, entered into force 28 April 1984) 1361 UNTS 190, art X(4).

70 Genie-Lacayo v Nicaragua (Judgment) IACtHR Ser C No 30 (29 January 1997) para 77; Human Rights Committee, ‘General Comment No 32: Article 14 (Right to Equality Before Courts and Tribunals and to a Fair Trial)’ (23 August 2007) UN Doc CCPR/C/GC/32, para 35; Motta v Italy App No 14307/88 (ECtHR, 19 February 1991) para 30.

71 Hoshinmaru (Japan v Russian Federation) (Prompt Release) [2007] ITLOS Rep 18, 60 (Declaration of Judge Türk).

72 UNCLOS (n 8) art 292(1).

73 Rules of ITLOS (n 17) arts 110–113.

74 M/V Saiga (No 2) (n 39) para 165.

75 ibid para 57 (Separate Opinion of Judge Laing).

76 K Kittichaisaree, The International Tribunal for the Law of the Sea (OUP 2021) 152.

77 Rigopoulos v Spain App No 37388/97 (ECtHR, 12 January 1999) 9.

78 ibid.

79 Medvedyev v France App No 3394/03 (ECtHR, 29 March 2010) paras 131–134.

80 ibid paras 79–81.

81 Mangouras v Spain App No 12050/04 (ECtHR, 28 September 2010).

82 Hoshinmaru (n 71) 60 (Declaration of Judge Türk).

83 Camouco (n 21) para 3(c) (Dissenting Opinion of Judge Vukas).

84 Mensah (n 43) 434.

85 König v Germany App No 6232/73 (ECtHR, 28 June 1978) para 99; Genie-Lacayo (n 70) para 77. See also LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466, para 57.

86 Camouco (n 21) para 54; Hoshinmaru (n 71) para 80.

87 Camouco (n 21) para 3(c) (Dissenting Opinion of Judge Vukas).

88 Juno Trader (n 2) para 14.

89 Petrig and Bo (n 47) 368.

90 Camouco (n 21) para 58.

91 DR Rothwell and T Stephens, ‘Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests’ (2004) 53 ICLQ 171, 185.

92 On the general circumstances, see Y Tanaka, ‘Prompt Release in the United Nations Convention on the Law of the Sea: Some Reflections on the ITLOS Jurisprudence’ (2004) 51 NILR 237, 258–68.

93 UNCLOS (n 8) arts 73(2), 220(7), 226.

94 Juno Trader (n 2) para 85. See generally, on standard of proof in prompt release, G Avayiwoe, ‘Evidence and the “Gravity of the Alleged Offences” for Prompt Release of Vessels and Crews under the UNCLOS Regime’ (2025) 24 CJIL 1.

95 Camouco (n 21) para 67; Hoshinmaru (n 71) para 82.

96 Monte Confurco (n 10) para 76.

97 Volga (Russian Federation v Australia) (Prompt Release) [2002] ITLOS Rep 10, para 65.

98 Rothwell and Stephens (n 91) 185.

99 Camouco (n 21) 50 (Dissenting Opinion of Judge Anderson).

100 ibid 42 (Declaration of Judge Laing).

101 Juno Trader (n 2) para 5 (Separate Opinion of Judge Treves).

102 Tomimaru (n 3) para 3(d) (Declaration of Judge Yanai).

103 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) [2010] ICJ Rep 639, para 87.

104 LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466; Avena and Other Mexican Nationals (Mexico v United States of America) (Judgment) [2004] ICJ Rep 12.

105 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] ICJ Rep 3, para 91; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v United Arab Emirates) (Preliminary Objections) [2021] ICJ Rep 71, para 4.

106 A v United Kingdom App No 3455/05 (ECtHR, 19 February 2009) para 163; Juridical Condition and Rights of Undocumented Migrants (Advisory Opinion) No OC-18/03 (IACtHR, 17 September 2003) para 101; Aksoy v Turkey App No 21987/93 (ECtHR, 18 December 1996) para 76.

107 Juno Trader (n 2) para 77.

108 However, several authors consider the finding that non-financial conditions are impermissible to be ‘troubling’: C Brown, ‘“Reasonableness” in the Law of the Sea: The Prompt Release of the Volga’ (2003) 16 LJIL 621, 628; R Baird, ‘Illegal, Unreported and Unregulated Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to Its Development and Persistence’ (2004) 5 MJIL 299, 323.

109 Volga (n 97) paras 79–80.

110 ibid paras 78–79.

111 Yağcı and Sargın v Turkey App No 16419/90 (ECtHR, 8 June 1995); Toshev v Bulgaria App No 56308/00 (ECtHR, 10 August 2006).

112 W Gullett, ‘Prompt Release Procedures and the Challenge for Fisheries Law Enforcement: The Judgment of the International Tribunal for the Law of the Sea in The ‘Volga’ Case (Russian Federation v Australia)’ (2003) 31 FLRev 395, 405–06.

113 Camouco (n 21) para 42. See also BH Oxman and VP Bantz, ‘The “Camouco” (Panama v France) (Judgment) ITLOS Case No 5’ (2000) 94 AJIL 713, 715.

114 Juno Trader (n 2) para 5 (Separate Opinion of Judge Treves).

115 Tomimaru (n 3) para 3(b) (Declaration of Judge Yanai).

116 Ruiz Torija v Spain App No 18390/91 (ECtHR, 9 December 1994) para 29; Chaparro Álvarez and Lapo Íñiguez v Ecuador (Judgment) IACtHR Ser C No 170 (21 November 2007) para 107.

117 Buzadji v Moldova App No 23755/07 (ECtHR, 5 July 2016) para 100.

118 Apitz Barbera v Venezuela (Judgment) IACtHR Ser C No 182 (5 August 2008) para 78.

119 Jorge Luis Blanco, Joshua Dean Nelson and Tele Fácil México SA de CV v United Mexican States (Final Award, 5 June 2020) ICSID Case No UNCT/17/1, para 359; Waste Management Inc v United Mexican States (No 2) (Award, 30 April 2004) ICSID Case No ARB(AF)/00/3, para 98.

120 Camouco (n 21) para 54.

121 See Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UNGA Res 43/173 (9 December 1988) UN Doc A/RES/43/173, principle 16(1); UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), UNGA Res 70/175 (17 December 2015) UN Doc A/RES/70/175, r 68; Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, DOC/OS(XXX)247 (2003) s M(2); UN Human Rights Committee, ‘General Comment No 35: Article 9 (Liberty and Security of Person)’ (16 December 2014) UN Doc CCPR/C/GC/35, para 59; The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law (Advisory Opinion) IACtHR Ser A No 16 (1 October 1999).

122 Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) 596 UNTS 261, art 36.

123 Juno Trader (n 2) para 3 (Separate Opinion of Judge Mensah and Wolfrum).

124 AD Mitchell and T Malone, ‘Abuse of Process in Inter-State Dispute Resolution’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2025) paras 1, 8. See generally C Brown, ‘The Relevance of the Doctrine of Abuse of Process in International Adjudication’ (2011) 8 TDM 1.

125 South China Sea Arbitration (Philippines v China) PCA Case No 2013-19, Award (12 July 2016) para 128; Immunities and Criminal Proceedings (Equatorial Guinea v France) (Preliminary Objections) [2018] ICJ Rep 292, para 150; Certain Iranian Assets (Islamic Republic of Iran v United States of America) (Preliminary Objections) [2019] ICJ Rep 7, paras 113–114.

126 Tomimaru (n 3) para 76.

127 M/V Virginia G (Panama/Guinea-Bissau) (Judgment) [2014] ITLOS Rep 4, para 12 (Declaration of Judge Kulyk).

128 Grand Prince (n 53) para 10.

129 ibid para 6 (Separate Opinion of Judge Treves).

130 Tomimaru (n 3) para 9 (Separate Opinion of Judge Jesus).

131 UNGA Res 217A (III) (10 December 1948) UN Doc A/810, art 17; American Convention on Human Rights (n 68) art 21; African Charter on Human and Peoples’ Rights (n 68) art 14.

132 ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (Award, 2 October 2006) ICSID Case No ARB/03/16, para 435; Reinhard Hans Unglaube v Republic of Costa Rica (Award, 6 May 2012) ICSID Case No ARB/09/20, para 272.

133 Mavrommatis Palestine Concessions Case (Greece v United Kingdom) (Jurisdiction) [1924] PCIJ Ser A No 2, 34; Certain German Interests in Polish Upper Silesia (Germany v Poland) (Jurisdiction) [1925] PCIJ Ser A No 6, 14.

134 Bantz (n 65) 419, citing Juno Trader (n 2) paras 18–24 (Separate Opinion of Judge Lucky).

135 Zafranas v Greece App No 4056/08 (ECtHR, 4 October 2011) para 36; Giavi v Greece App No 25816/09 (ECtHR, 3 October 2013) para 44; Lekić v Slovenia App No 36480/07 (ECtHR, 11 December 2018) para 95.

136 G.I.E.M. S.R.L. v Italy App Nos 1828/06, 34163/07 and 19029/11 (ECtHR, 28 June 2018) para 302; Shorazova v Malta App No 51853/19 (ECtHR, 3 March 2022) para 105.

137 N Klein, ‘Responding to Law of the Sea Violations’ (2020) 27 AILJ 1, 14.

138 C Goodman and V Schatz, ‘The Procedure for the Prompt Release of Vessels and Crews: Pragmatic? Predictable? Passé?’ in S Lalonde and A Serdy (eds), Research Handbook on the Law of the Sea (Edward Elgar 2026) 12.