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Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Order on Provisional Measures (ITLOS Cases Nos. 3 and 4)

Published online by Cambridge University Press:  27 February 2017

Barbara Kwiatkowska
Barbara Kwiatkowska*
Affiliation:
Netherlands Institute for the Law of the Sea
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Type
International Decisions
Information
American Journal of International Law , Volume 94 , Issue 1 , January 2000 , pp. 150 - 155
Copyright
Copyright © American Society of International Law 2000

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References

1 The Convention can be found in UN Law of the Sea Bull., No. 26, 1994, at 57. The Convention entered into force on May 20, 1994. Documents relating to the Southern Bluefin Tuna cases are available through the Oceans and Law of the Sea Web site at http://www.un.org/Depts/los> (and are currendy at <http://www.un.org/Depts/los/ITLOS/Tuna_cases.htm>). An index of online documents on procedures and cases is available at <http://www.un.org/Depts/los/ITLOS>. For the text of the Order, see 38 ILM 1624 (1999).

2 Annex I of the UN Convention on the Law of the Sea identifies southern bluefin tuna (thunnus maccoyii) as a highly migratory species whose conservation and management “throughout the region, both within and beyond the exclusive economic zone” is addressed by Article 64 of the Convention.

3 Their nominee was Professor Ivan Shearer, an Australian national. The Tribunal included a member ofjapanese nationality, Judge Soji Yamamoto.

4 Since the 1923 S.S. Wimbledon and the 1932 Memel Territory cases.

5 On August 13 Japan also appointed Professor Chusei Yamada as a member of the arbitral tribunal, to which the applicants had previously appointed Sir Kenneth Keith.

6 See Order, para. 25; Southern Bluefin Tuna Cases Verbatim Record, Doc. ITLOS/PV.99/20, at 28–31 (Aug. 18,1999). The remark in Oceans and the Law of the Sea: Report of the Secretary General, UN GAOR, 54th Sess., Agenda Items 40 (a) & (c), UN Doc. A/54/429, at para. 45 (1999), that a voir dire was “never previously used in an international dispute” is mistaken; it was used in the South West Africa cases and in reports of the Human Rights Committee on individual petitions (especially against Caribbean states). See Shabtai Rosenne, 3 The Law and Practice of the International Court, 1920–1996, at 1358 (1997).

7 In the M/V “Saiga” case, the applicant originally filed a request under Article 290(5), pending the submission of the merits of the dispute to arbitration. After the parties agreed to transfer their dispute to the Tribunal, the proceedings on provisional measures became an incidental phase, pursuant to Article 290(1), of the M/V “Saiga ” (No. 2) case (both jurisdiction and merits). See M/V “Saiga” (No. 2) Order (March 11, 1998), reprinted in 37 ILM 1202 (1998), and Judgment (July 1, 1999), paras. 1–5, reprinted in 38 ILM 1323 (1999), available in <http://www.un.org/Depts/los>.

8 Order, paras. 40, 62.

9 Id., para. 44 (citing Mavrommatis Palestine Concessions, 1924 PCIJ (ser.A) No.2, at 11, and South WestAfrica (Eth. v. S. Afr.; Liber, v. S. Afr.), Preliminary Objections, Judgment, 1962 ICJ Rep. 319, 328)); see Order, paras. 45–55; cf. Doc. ITLOS/PV.99/20, at 18 (Agent Campbell, Aug. 18, 1999).

10 See Order, paras. 33, 35, 56. Japan's Response to Request for Provisional Measures and Counter-Request for Provisional Measures in the Southern Bluefin Tunacases, paras. 42–82, maintained (para. 60) that “the disingenuous claim that Japan terminated negotiations by falling to agree to abort the EFP (and thus render the underlying dispute moot) is unfounded,” relying (para. 63) on the North Sea Continental Shelf pronouncements on the duty to negotiate, 1969 ICJ Rep. 3, at 47, paras. 86–87, and characterizing (para. 69) the conduct of applicants as falling within the classic definition of bad faith and abuse of right contrary to Article 300 of the Law of the Sea Convention. For criticism of forum shopping by the applicants as distorting the spirit and letter of Part XV, see id., para. 72 & Annex 6: Memorandum Concerning Jurisdiction. See Doc. ITLOS/PV.99/23, at 5–12 (Counsel Ando.Aug. 19, 1999).

11 Order, paras. 56–61; see Sep. Op. Shearer, J. (ad hoc).

12 Id., para. 80.

13 In his dissenting opinion (para. 4), Judge Vukas emphasizes that the urgency required under Article 290 (5) relates to the period pending the constitution of the arbitral tribunal, which may itself indicate provisional measures once constituted.

14 Order, para. 84. See id, paras. 63, 66, 69, 75, 82–83; arguments of Australia, in Doc. ITLOS/PV.99/21, at 23–24 (Counsel Burmester, Aug. 18, 1999), and those ofjapan, in Doc. ITLOS/PV.99/22, at 10 (Agent Togo, Aug. 19, 1999) and at 20–26 (Counsel Greig, Aug. 19, 1999), and in Doc.ITLOS/PV.99/23, at 8–10 (Counsel Ando, Aug. 19, 1999).

15 Order, para. 80. Seeparas. 73–74, 79. Had it been considering the merits of the dispute, the Tribunal might well have appointed an expert under Article 289 of the Law of the Sea Convention, modeled on Article 9 of the Rules of the ICJ concerning assessors.

16 In this connection the Tribunal's Order states that “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment.” Order, para. 70.

17 judge Laing concludes that “it is not possible, on the basis of the materials available and arguments presented on this application for provisional measures, to determine whether, as the Applicants contend, customary international law recognizes a precautionary principle.” Sep. Op. Laing, J., at para. 16. Judge Treves states that “a precautionary approach seems to me inherent in the very notion of provisional measures.” Sep. Op. Treves, J., at para. 9.

18 Order, paras. 70, 77. The use of the term “should” testifies to the Tribunal's perception of the precautionary approach as nonbinding. See supra note 17. See also Order, para. 71; Joint Declaration of Vice-President Wolfrum and Judges Caminos, Marotta Rangel, Yankov, Anderson, and Eiriksson; Sep. Ops. Treves, J. and Shearer, J. (ad hoc); Sep. Op. Laing, J., at paras. 11–21. Notwithstanding Judge Laing's conclusion set forth supra note 17, he believes that a precautionary approach (para. 19) might be inferred from the two Fisheries Jurisdiction Judgments (merits), 1974 ICJ Rep. 3, 31, para. 72 (U.K. v. Ice.), and 1974 ICJ Rep. 175, 200, para. 64 (F.R.G. v. Ice.), followed by the articulation of that approach in the 1992 UNCED Rio Declaration (Principle 15), in the 1995 UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks (Article 6 and related Guidelines), and in other instruments of modern environmental law.

19 Order, para. 90 (1) (dispositif). The two decisions in paragraphs 90 (2)–(3) use the mandatory term “shall” (see also paras. 86–89). The Tribunal's competence under Article 89 (5) of its Rules to prescribe measures proprio motu, relied upon with respect to the sixth measure, is referred to in the Order, para. 86.

20 See Doc. ITLOS/PV.99/21, at 27 (Counsel Burmester, Aug. 18, 1999) (arguing in favor of specifying the annual catch in reliance on the dispositifoithe two FisheriesJurisdiction Orders (provisional measures), 1972 ICJ Rep. 12 (U.K. v. Ice.), 30 (F.R.G. v. Ice.)). In his dissenting Declaration, Judge Warioba argued that in view of the inconclusive scientific evidence, the Tribunal was not entitled to prescribe the annual catch. Judges Yamamoto and Park considered that the fourth provisional measure could have likewise requested Australia to suspend exclusion ofjapan from fishing within its 200-mile EEZ, at least for the period pending the decision of the arbitral tribunal.

21 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Provisional Measures, 1984 ICJ Rep. 190, 206–07 (Schwebel, J, dissenting); see Bernard H. Oxman, Jurisdiction and the Power to Indicate Provisional Measures, in The International Court of Justice at a Crossroads 323, 342–43 (Lori F. Damrosch ed., 1987).

22 See Barbara Kwiatkowska, Inauguration of the ITLOS Jurisprudence, 30 Ocean Dev. & Int'l L. 43, 68 (1999); Shabtai Rosenne, The Tribunal: Survey for 1998, 14 Int'l. J. Marine & Coastal L. 453, 460–65 (1999). The same liberal approach is evident the 1997 M/V “Saiga” [No. 1] Judgment concerning the prompt release under Article 292, where the factor of urgency is also evident. See case report at 92 AJIL 278 (1998).

23 See dissent of Judge Schwebel in Military and Paramilitary Activities in and against Nicaragua, supranote 21, at 207. Cf. Stephen M. Schwebel, Nationaljudges and Judges Ad Hoc of the International Court of Justice, 48 Int'l & Comp. L.Q. 889, 894(1999).

24 Regulation of fisheries is not included in the enumeration of matters with respect to which there is compulsory jurisdiction under Article 297(1) “with regard to the exercise by a coastal State of its sovereign rights or jurisdiction.” Article 297(3) provides that “the coastal State shall not be obliged to accept the submission” to arbitration or adjudication “of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including … the terms and conditions established in its conservation and management laws and regulations.”

25 During the oral proceedings, Australia observed that Article 297(3) does not apply because the dispute exclusively concerns high seas fishing by Japan. SeeDoc. ITLOS/PV.99/20, at 10–11 (Counsel Williams, Aug. 18, 1999).

26 This awareness was already apparent in the 1997 Gabcikovo-Nagymaros Project (Hung. v. Slovk.) Judgment and other decisions of the International Court of Justice. See Stephen M. Schwebel, The Contribution of the ICJ to the Development of International Law in, International Law and The Hague's 750th Anniversary 405, 408–09, 413–16 (Wybo P. Heere ed., 1999); Barbara Kwiatkowska, The Contribution of the ICJ to the Development of the Law of the Sea and Environmental Law, 8 Rev. Eur. Community & Int'l Envtl. L. 10 (1999).

27 1973 ICJ Rep. 99 (Australiav. France), 135 (New Zealand v. France); 1998 M/V“Saiga” (No. 2) Order (Provisional Measures), supranote 7, Sep. Op. LaingJ., para. 36 n.61. For the applicants’ reliance on the Nuclear Teste Orders in the present proceedings, see Doc. ITLOS/PV.99/21, at 22 (Counsel Burmester, Aug. 18, 1999); Doc. ITLOS/ PV.99/ 24, at 13 (Counsel Crawford, Aug. 20, 1999), 15 (Counsel Burmester, Aug. 20, 1999).

28 In addition to the prior appointments by the respective parties, supra note 5, the parties appointed Judge Schwebel, Justice Florentino Feliciano, and Ambassador Per Tresselt after the delivery of the Tribunal's Order.