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II International Tribunal For The Law Of The Sea The Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan): Order For Provisional Measures Of 27 August 1999

Published online by Cambridge University Press:  17 January 2008

R. R. Churchill
R. R. Churchill
Affiliation:
Reader in Law, Cardiff Law School.
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Extract

Under Part XV of the 1982 United Nations Convention on the Law of the Sea, any dispute concerning the interpretation or application of the Convention which cannot be settled by the consensual means set out in section 1 of that Part, may be referred by any party to the dispute for compulsory settlement under section 2. There are four possible fora for such settlement—the International Court of Justice, the International Tribunal for the Law of the Sea (hereafter ITLOS), an arbitral tribunal constituted in accordance with Annex VII of the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII. If the parties to a dispute have made a declaration under Article 287 (which is optional) specifying their choice of forum, and their choices coincide, that body will be the forum for the settlement of the dispute. If their choices do not coincide or if not all parties have made a declaration, the forum for settlement will be an Annex VII arbitral tribunal.1

Type
Articles
Information
International & Comparative Law Quarterly , Volume 49 , Issue 4 , October 2000 , pp. 979 - 990
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. For much fuller accounts of the UN Convention's dispute settlement machinery, see, for example, Adede, A. O., The System for Settlement of Disputes under the UN Convention on the Law of the Sea (1987)Google Scholar; Brown, E. D., “Disputes Settlement and the Law of the Sea: The UN Convention Regime” (1997) 21 Marine Policy 17CrossRefGoogle Scholar; Collier, J. and Lowe, A. V., The Settlement of Disputes in International Law: Institutions and Procedures (1999), chap.4Google Scholar; and Merrills, J. G., International Dispute Settlement (3rd ed., 1998), chap.8.Google Scholar

2. (1999) 38 ILM 1624; also on the internet at http://www.un.org/Depts/los/LTLOS/order-tuna34.htm.

3. M/V Saiga (St Vincent v. Guinea) Provisional Measures Order (1998) 37 I.L.M. 1202. For discussion of this Order, see Lowe, A. V., “The M/V Saiga: The First Case in the International Tribunal for the Law of the Sea” (1999) 48 I.C.L.Q. 187 at 196–9Google Scholar; Kwiatkowska, B., “Inauguration of the ITLOS Jurisprudence” (1999) 30 Ocean Development and International Law 43 at 58–64, 68–9CrossRefGoogle Scholar; and Rosenne, S., “International Tribunal for the Law of the Sea: 1998 survey” (1999) 14 International Journal of Marine and Coastal Law 453 at 460–5.Google Scholar

4. (1994) 26 Law of the Sea Bulletin 57. The Convention came into force on 20 May 1994.

5. The information in this and the preceding paragraph is largely based on the SBT Commission's excellent website (http://www.home.aone.net.au/ccsbt), in particular its Fact Sheet and the reports of the fourth and fifth Commission meetings. See also Bergin, A. and Haward, M., “Southern Bluefin Tuna Fishery Recent Developments in International Management” (1994) 18 Marine Policy 263CrossRefGoogle Scholar; and Schiffman, H. S., “The Southern Bluefin Tuna Case: ITLOS hears its First Fishery Dispute” (1999) 2 Journal of International Wildlife Law and Policy 318.CrossRefGoogle Scholar

6. ITLOS Press Release 24, 30 July 1999, p.2.

7. Order, para.70.

8. For details sec Kwiatkowska, B., “The Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) Cases” (2000) 15 International Journal of Marine and Coastal Law 1 at 30–32.CrossRefGoogle Scholar

9. Hearings on this issue were held 7–11 May 2000. The parties' pleadings can be found on the internet at http://www.worldbank.org/icsid. It is likely that the tribunal's ruling on the question of jurisdiction will have been given by the time this note is published.

10. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 Dec. 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995. Text in (1995) 34 I.L.M. 1542. At the time of the submission of the dispute to ITLOS, all the parties had signed the Agreement, but none of them had ratified it.

11. Article 30(2) provides that Part XV of the 1982 Convention applies mutatis mutandis to any dispute between parties to the Agreement concerning the interpretation or application of a regional fisheries agreement relating to straddling fish stocks or highly migratory Ash stocks to which they are parties.

12. But see para.92 of the Reply of Australia and New Zealand to Japan's Memorial on Jurisdiction, loc cit. in n.9.

13. Order, para.60.

14. Nordquist, M. H., Rosenne, S. and Sohn, L. B. (eds), United Nations Convention on the Law of the Sea: A Commentary, Vol. V (1989), p.29Google Scholar. It has to be said that it seems difficult to find support for the view of these authors in the text of the 1982 Convention, and the view is not supported by any explicit reference to the travaux préparatoires.

15. See para.64 of the Order. The same view is also expressed in the separate opinions of Judge Treves (para.4) and Judge Laing (paras.6–7).

16. Order, para.70.

17. Judge Vukas in his dissenting opinion did not find the situation one of urgency in this respect because Australia and New Zealand had not proposed any self-restraint in respect of their own catches (para.5 of his opinion).

18. In his separate opinion Judge Treves states that “the urgency concerns the stopping of a trend towards” the collapse of the tuna stock. The measures prescribed by ITLOS aim at “stopping the deterioration in the southern bluefin tuna stock. Each step in such deterioration can be seen as ‘serious harm’ because of its cumulative effect towards the collapse of the stock” (para.8).

19. In his separate opinion Judge Treves suggests that the right of Australia and New Zealand is to see the southern bluefin tuna stock conserved: see para.6.

20. Op. cit. in n.8, pp.32–3. She finds the treatment by ITLOS of the requirement of urgency “disquieting” (p.27).

21. See Kwiatkowska, op. cit. in n.3, p.68; and Rosenne, op. cit. at in n.3, pp.464–5.

22. Kwiatkowska, B., Case Note in (2000) 94 A.J.l.L. 150 at 153CrossRefGoogle Scholar. As to whether ITLOS is competent to make recommendations when prescribing provisional measures, see Rosenne, op. cit. in n.3, pp.463–4.

23. In the Saiga case ITLOS also prescribed measures different from those requested.

24. It should, however, be noted that the catch limits referred to in measure (c) applied, when last prescribed by the SBT Commission, to both the high seas and the EEZ.

25. On this issue see Boyle, A. E., “Problems of Compulsory Jurisdiction and the Settlement of Disputes relating to Straddling Fish Stocks” (1999) 14 International Journal of Marine and Coastal Law 1 at 10–13.CrossRefGoogle Scholar

26. Article 297(3)(a) provides that a coastal State “shall not be obliged to accept” compulsory settlement of a dispute concerning its fisheries rights in its EEZ.

27. On this question, see, for example, Freestone, D. and Hey, E. (eds), The Precautionary Principle and International Law: The Challenge of Implementation (1996)Google Scholar; and Sands, P., Principles of International Environmental Law, Vol.1 (1995), pp.208–213.Google Scholar

28. For the distinction between the precautionary principle and a precautionary approach, especially as it concerns fisheries management, see Garcia, S., “The Precautionary Principle: Its Implications in Capture Fisheries Management” (1994) 22 Ocean and Coastal Management 99.CrossRefGoogle Scholar

29. See para. 19 of Judge Laing's opinion and para.8 of Judge Treves’ opinion. See also the statement by Judge ad hoc Shearer that the measures prescribed by ITLOS are “rightly based upon considerations deriving from a precautionary approach”.

30. See Article 6 and Annex II of the Agreement.

31. Cf. Shiftman, op. cit. in n5, p.353. In his view the ITLOS Order “must be regarded as a victory for the conservation of fishery resources”.

32. For example, in its Order ITLOS has required the parties to observe the previously set TAC, but ITLOS had no evidence that this necessarily represented a precautionary approach nor that it would prevent the stock from decreasing further. Indeed, in a joint declaration six judges called on the parties to reduce their catches in the immediate short term. Cf. also the order of interim measures made by the International Court of Justice in the Fisheries Jurisdiction cases (United Kingdom v. Iceland; Federal Republic of Germany v. Iceland) [1972] ICJ Rep. 12 and 30, where the Court ordered the United Kingdom and the Federal Republic of Germany to limit their annual fish catches to the annual average for the previous five years.

33. It is an interesting question as to whether such States are complying with their obligations to co-operate under Articles 64 and 116–119 of the 1982 Convention. The position of third parties will very definitely be affected if and when the 1995 UN Fish Stocks Agreement comes into force and they arc parties to it. They will either have to become members of the SBT Commission or fish in conformity with its conservation and management measures, or cease fishing for southern bluefin tuna; see Arts8(3) and 17.