Australia and New Zealand V Japan Southe
Australia and New Zealand V Japan Southe
Australia and New Zealand V Japan Southe
I INTRODUCTION
On 4 August 2000, an arbitral tribunal constituted under annexure VII of the
United Nations Convention on the Law of the Sea (‘UNCLOS’)1 delivered its
Award on Jurisdiction and Admissibility (‘Award’)2 in a dispute between
Australia and New Zealand on the one hand, and Japan on the other, concerning
the conservation and management of southern bluefin tuna (‘SBT’). In finding
that it did not have jurisdiction to rule on the merits of the case, the arbitral
tribunal revoked an earlier order for provisional measures made by the
International Tribunal for the Law of the Sea (‘ITLOS’)3 and encouraged the
parties to continue to seek to resolve their dispute under the peaceful means
provided for in the Convention for the Conservation of Southern Bluefin Tuna
(‘CCSBT’).4
* BCom, LLB (Hons) (Monash); LLM (Dist) (London). International Trade Law Consultant,
World Trade Organisation; International Environmental Law Consultant.
1 Opened for signature 10 December 1982, 1833 UNTS 3, 21 ILM 1261 (entered into force
16 November 1994).
2 Southern Bluefin Tuna Case (Australia and New Zealand v Japan) (Jurisdiction and
Admissibility) (Arbitral Tribunal constituted under annex VII of the United Nations
Convention on the Law of the Sea) (Award of 4 August 2000) <http://www.worldbank.org/
icsid/bluefintuna/award080400.pdf>.
3 Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional
Measures) (1999) 38 ILM 1624 (Order of 27 August 1999) (‘Provisional Order’).
4 Opened for signature 10 May 1993, ATS 1994 No 16 (entered into force 20 May 1994).
5 Ibid art 7.
6 Award, above n 2, [24].
Melbourne Journal of International Law [Vol 1
necessary to restore parental stocks to levels that would promote the achievement
of the Commission’s long-term management goal, namely returning the SBT
spawning stock biomass to 1980 levels by the year 2020. Conversely, Japan
claims that available data demonstrates that stocks are recovering from ‘historic
lows’ and that an increase in TAC would still be consistent with management
objectives.7
Japan commenced a unilateral three-year experimental fishing program in the
summer of 1998, in addition to its national allocation. In response, Australia and
New Zealand formally requested urgent consultations under the CCSBT, and
subsequently viewed these consultations as terminated by Japan’s refusal to
cease fishing under its experimental fishing program in 1999.8 Australia then
initiated proceedings under the UNCLOS dispute settlement provisions,9 and
pending the constitution of an arbitral tribunal,10 Australia and New Zealand
(‘the applicants’) sought provisional measures from ITLOS.11 In sum, the
applicants claimed that Japan had breached its obligations12 to conserve and
manage SBT stock.13
7 Ibid.
8 Ibid [26].
9 UNCLOS, above n 1, pt XV.
10 Ibid annex VII.
11 Pursuant to UNCLOS, above n 1, art 290(5).
12 These obligations arise under UNCLOS, above n 1, arts 64, 116–119.
13 SBT Provisional Order, above n 3, [28]–[29].
14 UNCLOS, above n 1, art 290(5).
15 Ibid art 290(1).
16 SBT Provisional Order, above n 3, [43].
17 Ibid [52].
2000] Southern Blue Fin Tuna Case
excess of the 11,750 tonne TAC,18 effectively putting a halt to the Japanese
experimental fishing program, pending the constitution of an arbitral tribunal.
18 Ibid [90(1)(c)].
19 UNCLOS, above n 1, art 287(1): a state is free to choose one or more of the following means
for the settlement of disputes by written declaration:
(a) the International Tribunal for the Law of the Sea;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or
more of the categories of disputes specified therein.
Melbourne Journal of International Law [Vol 1
A Japan
The central contention of Japan’s submissions to the arbitral tribunal was that
the dispute at hand did not concern the application or interpretation of UNCLOS
and should not, therefore, involve the application of its dispute settlement
provisions. Japan contended that all attempts at resolving the dispute had been
conducted within the framework of the CCSBT and that the ‘[b]elated invocation
of UNCLOS and customary international law … [was] an artifice to enable the
Applicants to seek provisional measures … and to evade the consensual
requirements of Article 16 of the [CCSBT]’.20 Japan characterised the CCSBT as
a lex specialis, and contended that:
In accordance with generally accepted principles, the provisions of a lex specialis
not only specify and implement the principles of [UNCLOS]; they exhaust and
supplant those principles as long as the implementing agreement remains in
force.21
It was argued that the lex specialis prevails ‘substantively and procedurally’, and
therefore the wording of article 16 of the CCSBT should determine jurisdiction.22
In the alternative, if the arbitral tribunal were to find that the dispute was one
concerning the interpretation and application of UNCLOS, Japan argued that the
arbitral tribunal should decline to decide upon the merits of the case. Recourse to
the dispute settlement procedures in part XV of UNCLOS is available only where
no settlement has been reached by the parties pursuant to agreed ‘peaceful means
of their own choice’ and additionally where the ‘agreement between the parties
does not exclude any further procedure’ for dispute settlement.23 Japan argued
that the applicants had failed to exhaust the dispute settlement procedures set out
in article 16 of the CCSBT, and that this article excludes the possibility of further
procedures, including the compulsory procedures of UNCLOS, without the
consent of all of the parties to the dispute.24
B The Applicants
In response, the applicants argued that the dispute settlement provisions of
UNCLOS should apply in tandem with those of the CCSBT, since the dispute
centred on key UNCLOS rights and duties, namely whether Japan had failed to
‘conserve and cooperate in the conservation of SBT stock, as particularly shown
by its unilateral’ experimental fishing program.25 They argued that the provisions
in articles 64 and 116–119 of UNCLOS establish norms applicable to the case,
by which the lawfulness of Japan’s actions could be evaluated. According to the
26 Ibid [41(b)].
27 Ibid [41(g)].
28 Ibid [41(k)].
29 Ibid.
30 Ibid [41(i)].
31 Ibid [41(g)].
32 Ibid [41(k)].
33 Ibid [47].
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34 Ibid [52].
35 Ibid [52].
36 UNCLOS, above n 1, art 117.
37 Award, above n 2, [52].
38 UNCLOS, above n 1, art 281(1) (emphasis added).
39 Award, above n 2, [55].
40 Ibid.
41 Ibid [56].
42 Ibid [57].
2000] Southern Blue Fin Tuna Case
43 Ibid.
44 See, eg, UNCLOS, above n 1, s 3 of pt XV.
45 Award, above n 2, [61].
46 Ibid [63].
47 Opened for signature 1 December 1959, 402 UNTS 71, ATS 1961 No 12 (entered into force
23 June 1961).
48 Award, above n 2, [58].
49 Ibid [62].
Melbourne Journal of International Law [Vol 1
the fact that the disputes arose within the context of the CCSBT framework
should not have prevented the invocation of the separate set of UNCLOS
peaceful settlement obligations that exist both ‘along with and distinct from the
provisions of article 16’50 of the CCSBT.
It therefore remained to be decided whether article 16 excluded the UNCLOS
dispute settlement procedures. The wording of article 16(1) refers to disputes
‘concerning the interpretation or implementation of this Convention’ (emphasis
added), and according to Sir Kenneth Keith, should not be read as referring to
disputes arising through the invocation of UNCLOS obligations which are not in
the CCSBT.51
Sir Kenneth Keith emphasised that the ‘two treaty regimes (including their
settlement procedures) remain distinct’52 and that it would be surprising if
procedures for the settlement of disputes under the CCSBT were applicable to
disputes arising beyond it. He noted that article 16 does not ‘exclude means to
which the parties have separately agreed in respect of disputes concerning the
interpretation or application of other treaties.’53 Given the general recognition of
overlapping dispute settlement provisions in ‘international judicial practice and
the general law of treaties’54 and the pivotal role played by compulsory and
binding dispute settlement in the travaux preparatoires and operation of
UNCLOS, Sir Kenneth Keith concluded that the exclusion of the binding
procedures of UNCLOS under the CCSBT would require a clear and express
wording to that effect. On this basis, he held that the arbitral tribunal had
jurisdiction to hear the merits of the dispute.
VIII CONCLUSION
The Award represents a rare example of an arbitral body prepared to decline
jurisdiction and take the adventurous step of implying the exclusion of the
compulsory dispute settlement provisions of UNCLOS through the provisions of
a regional fisheries agreement, the CCSBT. The concerns expressed in the
separate opinion of Sir Kenneth Keith appear well-founded, especially in the
context of a dispute that involved only the invocation of general UNCLOS
obligations. Above all, the dispute highlights the care that needs to be taken in
drafting dispute settlement provisions in regional fisheries agreements, since the
result in this case derived mainly from a failure of the CCSBT to make explicit
reference to the UNCLOS dispute settlement provisions.
Interestingly, the Award noted the effect that an ‘in force’ Straddling Stocks
Agreement (‘SSA’)55 may have had on the outcome of this dispute, in particular
50 Ibid [12].
51 See especially, UNCLOS, above n 1, art 117.
52 Award, above n 2, [16].
53 Ibid [15].
54 Ibid [18].
55 Agreement for the Implementation of the Provisions of the United Nations Convention on
the Law of the Sea of 10 December 1982 relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature
4 December 1995, 34 ILM 1542 (not yet in force).
2000] Southern Blue Fin Tuna Case