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Southern Bluefin Tuna Cases Digest

New Zealand and Australia brought arbitration proceedings against Japan before an international tribunal, alleging that Japan failed to cooperate in conservation efforts for the depleted southern bluefin tuna stock by conducting unilateral experimental fishing. Japan argued the tribunal did not have jurisdiction and the parties had not exhausted settlement procedures. However, the tribunal found it did have jurisdiction and negotiations between the parties had occurred. It prescribed provisional measures requiring the parties not to exacerbate the dispute and resume negotiations to agree on conservation measures for the vulnerable southern bluefin tuna population.

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94 views2 pages

Southern Bluefin Tuna Cases Digest

New Zealand and Australia brought arbitration proceedings against Japan before an international tribunal, alleging that Japan failed to cooperate in conservation efforts for the depleted southern bluefin tuna stock by conducting unilateral experimental fishing. Japan argued the tribunal did not have jurisdiction and the parties had not exhausted settlement procedures. However, the tribunal found it did have jurisdiction and negotiations between the parties had occurred. It prescribed provisional measures requiring the parties not to exacerbate the dispute and resume negotiations to agree on conservation measures for the vulnerable southern bluefin tuna population.

Uploaded by

Kristanne Louise Yu
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Southern Bluefin Tuna cases (New Zealand v.

Japan; Australia
v. Japan)

Abstract:

By notification submitted to Japan on 15 July 1999 New Zealand and Australia instituted arbitral
proceedings before the International Tribunal for the Law of the Sea as provided for in Annex
VII to the United Nations Convention on the Law of the Sea (UNCLOS) in a dispute concerning
southern bluefin tuna.

New Zealand and Australia alleged that Japan had failed to comply with its obligation to
cooperate in the conservation of the southern bluefin tuna stock by, inter alia, undertaking
unilateral experimental fishing for southern bluefin tuna in 1998 and 1999 and had requested an
arbitral tribunal to be constituted. The Applicants asked the arbitral tribunal to declare that Japan
had breached its obligations under Articles 64 and 116 to 119 of UNCLOS.

As a consequence of the said breaches of UNCLOS, Japan should refrain from authorizing or
conducting any further experimental fishing for SBT without the agreement of New Zealand and
Australia and negotiate and co-operate in good faith with New Zealand and Australia with a view
to agreeing future conservation measures and total allowable catch for southern bluefin tuna
necessary for restoring the stock to levels which could produce the maximum sustainable yield.
Pending the constitution of the arbitral tribunal, Australia and New Zealand also requested the
Tribunal to prescribe as provisional measures that Japan immediately cease unilateral
experimental fishing and that the parties ensure that no action of any kind was taken which might
aggravate, extend or render more difficult the solution of the dispute.

Japan contended that the Annex VII tribunal had to have prima facie jurisdiction. This meant
among other things that the dispute had to concern the interpretation or application of UNCLOS
and not some other international agreement. The dispute concerned the interpretation of the
Convention for the Conservation of Southern Bluefin Tuna of 1993 and did not concern the
interpretation of the Convention on the Law of the Sea.

Secondly, Australia and New Zealand had to have attempted in good faith to reach a settlement
in accordance with the provisions of UNCLOS Part XV, Section 1. Australia and New Zealand
had satisfied neither condition. The Tribunal was without authority to prescribe any provisional
measures. The Request for provisional measures by Australia and New Zealand should be
denied.

The Tribunal decided that the fact that the Convention of 1993 applied between the parties did
not exclude their right to invoke the provisions of the Convention on the Law of the Sea in
regard to the conservation and management of southern bluefin tuna.

Japan also contended that Australia and New Zealand had not exhausted the procedures for
amicable dispute settlement under Part XV, section 1, of the Convention, in particular article
281, through negotiations or other agreed peaceful means, before submitting the disputes to a
procedure under Part XV, section 2, of the Convention.

The Tribunal found that negotiations and consultations had taken place between the parties. A
State Party was not obliged, though, to pursue procedures under Part XV of the Convention
when it concluded that the possibilities of settlement had been exhausted.

RULING:
The Tribunal therefore had to decide whether provisional measures were required pending the
constitution of the arbitral tribunal. It took into consideration that Australia and New Zealand
contended that further catches of southern bluefin tuna, pending the hearing by an arbitral
tribunal, would cause immediate harm to their rights. It also emphasized that the conservation of
the living resources of the sea was an element in the protection and preservation of the marine
environment, and that the stock of southern bluefin tuna was severely depleted and was at its
historically lowest levels and that this was a cause for serious biological concern.
For the above reasons, provisional measures were appropriate in the view of the Tribunal. It
prescribed, intern alia, the following measures:

Australia, Japan and New Zealand should each ensure that no action was taken which might
aggravate or extend the disputes submitted to the arbitral tribunal.

Australia, Japan and New Zealand should each ensure that no action was taken which might
prejudice the carrying out of any decision on the merits which the arbitral tribunal may render.
Australia, Japan and New Zealand should resume negotiations without delay with a view to
reaching agreement on measures for the conservation and management of southern bluefin tuna.

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