Cause of Action:
Australia approached the International Tribunal for the Law of the Sea (‘the Tribunal’) ( ITLOS) to prescribe the provisional measures specified in Australia’s dispute with Japan over Southern Bluefin Tuna (‘SBT’),pending the constitution of an Arbitral Tribunal under Annex VII of UNCLOS (‘the Arbitral Tribunal’).
The dispute relates to Japan’s failure to conserve, and to cooperate in the conservation of, the SBT stock, as manifested, inter alia, by its unilateral experimental fishing for SBT in 1998 and 1999.
It also included the interpretation and application of certain provisions of UNCLOS.
The Arbitral Tribunal were asked to take into account, for the said reasons, the provisions of the 1993 Convention for the Conservation of Southern Bluefin Tuna (‘the 1993 Convention’) and the parties’ practice in relation to that Convention, as well as their obligations under general international law, in particular the precautionary principle.
- Japan’s unilateral experimental fishing for SBT and its lack of cooperation in the conservation and management of SBT which will have the potential to cause serious prejudice to the rights of Australia;
- Natural environmental changes could combine at any time with the vulnerable state of the resource to cause a further and potentially highly damaging decline to the stock;
- The reason for requesting provisional measures is that Japan’s current and proposed unilateral actions in relation to SBT, taken in the context of a stock at historically low levels, increase the threat to that stock and undermine the disciplines of the accepted scheme for SBT management;
- If not addressed by way of provisional measures, the unilateral actions of Japan have the potential to cause serious prejudice to the rights of Australia;
- This prejudice could not be the subject of adequate remedy in any subsequent decision of the Annex VII Arbitral Tribunal;
- Pending the constitution of this Arbitral Tribunal under Annex VII of UNCLOS, Australia and New Zealand, on July 30, 1999, each filed a request for the prescription of provisional measures with the International Tribunal for the Law of the Sea (“ITLOS”).
Background to the Current Proceedings
Southern Bluefin Tuna (Thunnus maccoyi, hereafter sometimes designated “ SBT “) is a migratory species of pelagic fish that is included in the list of highly migratory species set out in Annex I of the United Nations Convention on the Law of the Sea. SBT range widely through the oceans of the Southern Hemisphere, principally the high seas, but they also traverse the exclusive economic zones and territorial waters of some States, notably Australia, New Zealand and South Africa. They spawn in the waters south of Indonesia. The main market for the sale of SBT is in Japan, where the fish is prized as a delicacy for sashimi.
Grounds argued and or pleaded:
- It is common ground between the Parties that commercial harvest of SBT began in the early 1950s and that, in 1961, the global catch peaked at 81,000 metric tons (“mt”). By the early 1980s, the SBT stock had been severely overfished; it was estimated that the parental stock had declined to 23-30% of its 1960 level.
- In 1982, Australia, New Zealand and Japan began informally to manage the catching of SBT. Japan joined with Australia and New Zealand in 1985 to introduce a global total allowable catch (hereafter, “TAC“) for SBT, initially set at 38,650 mt.
- In 1989, a TAC of 11,750 tons was agreed, with national allocations of 6,065 tons to Japan, 5,265 tons to Australia and 420 tons to New Zealand; Japan, as the largest harvester of SBT, sustained the greatest cut.
- But the SBT stock continued to decline. In 1997, it was estimated to be in the order of 7-15% of its 1960 level. Recruitment of SBT stock – the entry of new fish into the fishery – was estimated in 1998 to be about one third of the 1960 level.
- The institution of total allowable catch restrictions by Japan, Australia and New Zealand to some extent has been offset by the entry into the SBT fishery of fishermen from the Republic of Korea, Taiwan and Indonesia, and some flag-of convenience States.
- in response to TAC restrictions, the stock has in fact begun to recover is at the core of the dispute between Australia and New Zealand, on the one hand, and Japan, on the other.
- They differ over the current state and recovery prospects of SBT stock and the means by which scientific uncertainty in respect of those matters can best be reduced.
- In 1993, Australia, Japan and New Zealand concluded the Convention for the Conservation of Southern Bluefin Tuna (hereafter, die “1993 Convention” or “CCSBT”).
- The provisions most pertinent to these proceedings are the following:
- “Recalling that Australia, Japan and New Zealand have already taken certain measures for the conservation and management of southern bluefin tuna;
- “Paying due regard to the rights and obligations of the Parties under relevant principles of international law;
- “Noting the adoption of the United Nations Convention on the Law of the Sea in 1982;
- “Noting that States have established exclusive economic or fishery zones within which fishing exercise, in accordance with international law, sovereign rights or jurisdiction for the purpose of exploring and exploiting, conserving and managing the living resources;
- “Recognising that southern bluefin tuna is a highly migratory species which migrates through such zones;”
The Jurisdiction of Tribunal was disputed by Japan.
- Japan challenged the contentions of Australia and New Zealand on the facts and the law.
- It contended that it was Australia and New Zealand who had frustrated the functioning of the CCSBT Commission and regime.
- Japan contended that, it maintained that the gravamen of the claims asserted concern the 1993 Convention, not UNCLOS, and that those claims turned not on issues of law but matters of scientific appreciation.
- Article 290(5) of UNCLOS contemplates the imposition of provisional measures by the International Tribunal for the Law of the Sea (“ITLOS”) only if the arbitral tribunal would have prima facie jurisdiction over the underlying dispute.
- Article 288(1) of UNCLOS gave an arbitral tribunal jurisdiction over any dispute concerning the interpretation or application of UNCLOS, a treaty not actually the basis of the Applicants’ claims.
- The Applicants in August 1998 specifically invoked dispute resolution under the 1993 Convention, not UNCLOS; they had treated the dispute as one arising under the CCSBT, and sought consultations not under UNCLOS but under Article 16 of the 1993 Convention.
- The procedures under the 1993 Convention had not been exhausted; the Parties were required to continue to seek resolution of their dispute pursuant to those procedures. Nor had the procedural conditions for arbitration under UNCLOS been met; Australia and New Zealand had not attempted to reach a settlement in good faith, or even exchange views, in accordance with the provisions of UNCLOS Part XV.
- No irreparable damage threatened. Article 64 of UNCLOS merely created an obligation of cooperation, and prescribed no specific principles of conservation or concrete conservation measures.
It was observed by 4 in favour and 1 vote against the issue of Jurisdiction as under with gist of reasoning as under:
- Article 16 it provides a list of various named procedures of peaceful settlement, adding “or other peaceful means of their own choice.”
- No particular procedure in this list has thus far been chosen by the Parties for settlement of the instant dispute.
- bearing in mind the reasoning of the preceding paragraph – the Tribunal expressed a view that Article 16 falls within the terms and intent of Article 281(1), as well as Article 280.
- Article 16 of the 1993 Convention “exclude[s] any further procedure” within the contemplation of Article 281(1) of UNCLOS
- Examination of the provisions comprising section 3 (and constituting interpretive context for sections 1 and 2 of Part XV) reveals that they establish important limitations and exceptions to the applicability of the compulsory procedures of section 2.
- the limitative provisions of Article 297 of UNCLOS, Article 298 establishes certain optional exceptions to the applicability of compulsory section 2 procedures and authorizes a State (whether coastal or not), at any time, to declare that it does not accept any one or more of such compulsory procedures in respect of: (a) disputes concerning Articles 15, 74 and 83 relating to sea boundary delimitations or historic bays or titles; (b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities by a coastal State. (c)Finally, Article 299 of UNCLOS provides that disputes excluded by Article 297 or exempted by Article 298 from application of compulsory section 2 procedures may be submitted to such procedures “only by agreement of the parties to the dispute”.
- that disputes implicating obligations under both UNCLOS and an implementing treaty such as the 1993 Convention – as such disputes typically may – must be brought within the reach of section 2 of Part XV of UNCLOS would be effectively to deprive of substantial effect the dispute settlement provisions of those implementing agreements which prescribe dispute resolution by means of the parties’ choice
- Held :
- Tribunal lacks jurisdiction to entertain the merits of the dispute brought by Australia and New Zealand against Japan.
- Having reached this conclusion, the Tribunal did not find it necessary to pass upon questions of the admissibility of the dispute, although it may be observed that its analysis of provisions of UNCLOS that bring the dispute within the substantive reach of UNCLOS suggests that the dispute is not one that is confined to matters of scientific judgment only.
- Tribunal did not find the proceedings brought before ITLOS and before the Tribunal to be an abuse of process; on the contrary, as explained below, the proceedings have been constructive.
- However, revocation of the Order prescribing provisional measures does not mean that the Parties may disregard the effects of that Order or their own decisions made in conformity with it.
- The Order and those decisions – and the recourse to ITLOS that gave rise to them – as well as the consequential proceedings before this Tribunal, have had an impact: not merely in the suspension of Japan’s unilateral experimental fishing program during the period that the Order was in force, but on the perspectives and actions of the Parties.