Evidence and the “Gravity of the Alleged Offences” for Prompt Release of Vessels and Crews under the UNCLOS Regime

Abstract Amid recent developments signaling the revival of the Prompt Release procedure under Article 292 of the UN Convention on the Law of the Sea (the Convention or UNCLOS) and to help guide the procedure’s future usage, this article confronts one of its topical but neglected controversy: the prejudgment concerns arising from the need to evaluate evidence to ascertain guilt or illegality under the “gravity of the alleged offences” factor (the gravity factor). The author employs the rules of interpretation outlined under Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT) to examine the relationship between Article 292 of the UNCLOS and the gravity factor. The author concludes that the gravity factor calls for using presumptions rather than standards of proof when evaluating evidence. This perspective flows from the interpretative outcome, suggesting that Article 292 of the UNCLOS is towards securing future court attendance to determine the illegality occasioning the arrest and, as such, making irrelevant a definitive finding on guilt for the Prompt Release procedure. Consequently, presumption overcomes prejudgment implications as it would allow inferences from facts at the time of arrest to preliminarily conclude guilt to promptly release detained vessels and crews. Once the vessels or crews are released, the conclusion of guilt can be rebutted in the main proceedings meant to determine the alleged illegality. While the findings and the ensuing disregard for standards of proof dispel illegal, unregulated, and unreported fishing (IUU-fishing) analyses often incorporated within the gravity factor, the author is of the view that a presumption-based regime will go a long way to address such concerns.