Southern Bluefin Tuna Case Australia v Japan New Zealand v. Japan Provisional measures Australia & New Zealand v. Japan Jurisdiction and admissibility

SBT is a migratory species that range through the Southern hemisphere 1950 commenced commercial exploitation SBT 1980 stock had declined to 30% of the original one 1985 Japan (J), Australia (A), New Zealand (NZ) introduced total allowable catch (TAC) Whether, in response of the TAC, the stock has recovered was the core of the dispute UNCLOS 1982 art 64 (migratory species) ‘Coastal States and other States … shall cooperate directly or through appropriate International Organizations with a view to ensuring conservation’ 1993, and according to 64 UNCLOS, A, J & NZ signed the Convention for the Conservation of SBT, (1993 Convention) Art 6 of 1993 Convention established a Commission for the conservation of SBT. 1994 Commission set a TAC of 11,750 ton Commission had not set TAC since 1998 1998 At the commission meeting Japan adhere to its previous quota and announced its decision of a unilateral Experimental Fishing Program (EFP) starting 1998. A & NZ requested consultations under 16(1) 1993 Convention and stated that if Japan recommenced the EFP they would regard such action as termination of negotiations A & NZ said that dispute relate obligations under 1993 Convention, UNCLOS & CIL, and exchange of views have been done according to 283, Part XV (settlement of disputes) under UNCLOS 1982 15 July 1999 A & NZ decided to recur to compulsory jurisdiction under Part UNCLOS XV (related Annex VII, arbitration) and rejected arbitration under 16(2) 1993 Convention 30 July 1999, pending the constitution of the Arbitral Tribunal A & NZ requested provisional measures (290.5 UNCLOS) to ITLOS Japan challenged: 1. the claims concern 1993 Convention, not UNCLOS 2. The claims are not issues of law, but matters of scientific appreciation Art 16 of 1993 Convention (1) ‘If any dispute arises …concerning interpretation or implementation … Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice’ (2)‘any dispute …not resolved shall, with the consent in each case of all the parties to the dispute, be referred for settlement to ICJ or to Arbitration’ Art 281 UNCLOS Procedure where no settlement has been reached by the parties “1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure” Art 282 UNCLOS Obligations under general, regional or bilateral agreements “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree” 300 UNCLOS. Good faith and abuse of rights. “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right”

[Resolution, August 1999 ITLOS] [Japan argued that:1. invocation to UNCLOS and CIL is an artifice to enable the applicants to seek provisional measures from ITLOS and evade consensual requirements art 16 1993 Conventions. 2. AT UNCLOS is excluded because 1993 convention provides settlement of dispute 3. negotiations have not been exhausted under part XV 4. There is no urgency for provisional measures. 5. the claims concern 1993 Convention (lex specialis), not UNCLOS (lex generalis) 6. The claims are not issues of law, but matters of scientific appreciation] (54) Considering that Australia and New Zealand maintain that they are not precluded form having recourse to the arbitral tribunal since the Convention of 1993 does not provide for a compulsory dispute settlement procedure entailing a binding decision as required under article 282 of the Convention on the Law of the Sea (55) Considering that, in the view of the Tribunal, the fact that the Convention of 1993 applies between the parties does not preclude recourse to the procedures in Part XV, section 2, of the Convention of the Law of the Sea (62) Considering that… the Tribunals finds that the arbitral tribunal would prima facie have jurisdiction over the disputes (77) … in the view of the Tribunal, the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of SBT [ITLOS prescribed provisional measures: cessation EFP] [Resolution, August 2000 AT UNCLOS] (47) …What profoundly divides the Parties is whether the dispute arises solely under the 1993 Convention, or whether it also arises under UNCLOS (52).. the current range of international legal obligations benefits form a process of accretion and cumulation…the dispute between Australia and New Zealand… and Japan…. While centered in the 1993 Convention, also arises under the United Nations Conventions of the Law of the Sea (54) The Tribunal accepts Article 16 of the 1993 Conventions as an agreement by the Parties to seek settlement of the instant dispute by peaceful means of their own choice (56) The Tribunal now turns to the second requirement of Article 281(1): that the agreement between the parties “does not exclude any further procedure”. This is a requirement, it should be recalled, for applicability of the “procedures provided for in this part” that is to say, the “compulsory procedures entailing binding decisions” dealt with in section 2, of UNCLOS part XV (57) … article 16(1) [1993 Convention] requires the parties to “consult among themselves” … article 16(2) … directs the referral of a dispute not resolved by any of the above-listed means of the parties’ “own choice” for settlement “to the International Court of Justice or to arbitration” but “with the consent in each case of all the parties” … the ordinary meaning of these terms … makes it clear that the dispute is not referable to adjudication …. “at the request of any party to the dispute” (in the words of UNCLOS article 286) The consent in each case of all the parties to the dispute is required (58) It is plain that the wording of Article 16(1) and (2) has its essential origins in the terms of Article XI of the Antarctic Treaty; the provision are virtually identical. In view of the States that concluded the Antarctic Treaty – divided as they were between some States that adhered to international adjudications and arbitration and a Great Power that then ideologically opposed it- it is obvious that these provisions are mean to exclude compulsory jurisdiction (59) For all these reasons, the Tribunal concludes that Article 16 of the 1993 Convention “exclude(s) any further procedure” within the contemplation of Article 281(1) UNCLOS. (62) [as there were limitation to compulsory procedures 297 UNCLOS (sovereign rights or jurisdiction of the coastal State] It thus appears to the Tribunal that UNCLOS falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction entailing binding decisions (64) the Tribunal does not exclude the possibility that there might be instances in which the conduct of a State Party to UNCLOS and to a fisheries treaty implementing it would be so egregious and risk consequences of such gravity, that a Tribunal might find that obligations of UNCLOS provide a basis for jurisdiction, having particular regard to the provisions of Article 300 of UNCLOS (65) It follows from the foregoing analysis that this Tribunal lacks jurisdiction to entertain the merits of the dispute [NZ & Australia contended: UNCLOS establishes a new and comprehensive legal regime for all ocean space, a vital element of which is a mandatory settlement of disputes (sec 2 Part XV), in which fisheries is included 297 (3). Procedures under part 1 (consensual settlement) are not obligatory if possibilities of settlement have been exhausted. UNCLOS (311) prevails over 1993 Convention]