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International Tribunal for the Law of the Sea: Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (Provisional Measures)*

Published online by Cambridge University Press:  27 February 2017

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Abstract

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 38 , Issue 6 , November 1999 , pp. 1624 - 1655
Copyright
Copyright © American Society of International Law 1999

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Footnotes

*

This document was reproduced and reformatted from the text produced by the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, New York, and appearing at the International Tribunal of the Law of the Sea (U.N.) Website (visited 10/5/99) <http://www.un.org/Depts/los/>

References

Endnotes

1. In this case, eminent scientists have expressed diametrically opposed opinions on several critical issues relating to the Applicants' assertion on and scientific reports that the stock of Southern Bluefiii Tuna is under serious threat. Inter alia, these have been on: predictions of the future level of parental biomass; changes in size composition; projections on the level of recovery; the appropriate approaches to necessary scientific investigation; the rate of recruitment of young fish to the stock; the increase in mortality rates of juvenile fish; whether an Experimental Fishing Programme (EFP) can or should be conducted unilaterally; the nature and scope of an appropriate EFP; the impact of fishing by non-parties to a fisheries management Convention; the actual structure and impact of EFPs designed by Japan (critiques about hypotheses;-testing modalities; number of on-board monitors; whether additional catch of 2,000 fish per annum would be very significant if combined with the Total Allowable Catch; if the stock effectively decreases after the survey and general quota reductions occur, whether it may be impossible to prove that these were not provoked by the survey; method of data review and analysis; access to data by non-survey States; independence of reviewers; constraints on vessel location.) Miscellaneous documents annexed to Response.

2. It will be noted that there is no requirement of urgency under article 31 of the Agreement for the Implementation of the Provisions of the 1995 United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (hereafter Straddling Fish Stocks Agreement). Article 31:2 provides for provisional measures in terms identical to the first formula of UNCLOS article 290:1 and also "to prevent damage to the stocks in question."

3. Of note is para. 17.21 of Agenda 21, adopted at the 1992 Rio Conference on the Environment and Development. Paragraph 17.1 also calls for "new approaches to the marine and coastal area management and development, at the national, regional and global levels,- approaches that are integrated in context and are precautionary and anticipatory in ambit. . ." Paragraph 15 of the Rio Declaration, adopted at the same Conference, provides that "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." See generally Request for Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of20 December 1974 in the Nuclear Tests (New Zealand v France) case, Separate Opinion by Judge Weeramantry, I.C.J. Reports 1995,288,341-44; The Precautionary Principle and International Law: The Challenge of Implementation (D. Freestone and E. Hey, eds, 1996); D. Freestone and E. Hey in Freestone and Hey 1996, 19-28, 258; A. Kiss in Freestone and Hey 1996, 3-16, 258; The Global Environment: Institutions, Law and Policy; (K. Vig and R. Axlerod, eds,1999); A. D'Amato and K. Engel, International Environmental Law Anthology (1996); J. Cameron and J. Abouchar, in Freestone and Hey 1996,29-52; C. Burton, 22 Harv. Env. L.R. 509-58 (1998); M. Kamminga in Freestone and Hey 1996,171-86; O. McIntyre and T. Mosedale, 9 Jo. Env. L. 221-41 (1997); W. Gullett, 14 Env. & PI. LJ. 52-69 (1997).

4. P. Sands in Freestone and Hey 1996,134; F. Cross, 53 Wash. & Lee LR. 851-925 (1996); J. Hickey and V. Walker, 14 Va. Env. L J. 423-54 (1995); J. Macdonald, 26 O.D.I.L 255-86 (1995).

5. It might be noted that treaties and formal instruments use different language of obligation; the notion is stated variously (as a principle, approach, concept, measures, action); no authoritative judicial decision unequivocally supports the notion; doctrine is indecisive, and domestic juridical materials uncertain or evolving.

6. Article 194 5 of UNCLOS states that measures taken in accordance with Part XII, on protection and preservation of the marine environment, shall include those necessary to protect and preserve rare and fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. Impliedly, the ingredients of the marine environment include living resources. However it is evident that this does not dispose of the question posed in the text.

7. These developments were foreshadowed by the 1982 resolution of the International Whaling Commission, imposing a ban on commercial whaling, and by the 1989 United Nations General Assembly resolution recommending modalities for introducing a ban on fishing with driftnets. However, I am not quite certain whether these two precedents are more consistent with the pretension of establishing a more comprehensive normative framework than I believe the approach connotes.

8. In fact, in the area of fisheries management, such a decision should be made with great care, because of its possible impact on fishermen which, prima facie, could be unfair and unrealistic, unless the level of scientific certainty about probable damages increases.

1 The request by Switzerland in the Interhandel case was dismissed on account of a lack of urgency; ICJ Reports, 1957, p. 112.

2 Rosenne, Shabtai, The World Court; what it is and how it works 5th ed, Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1995, p 97.Google Scholar

1 The word "entail" means "necessitate", or "involve unavoidably". The word used in the French text of article 282 is "aboutissant". The Verb "aboutir" means "avoir pour resultat" or "arriverfinalem'ent”.