Southern Bluefin Tuna (Australia and New Zealand v. Japan). Jurisdiction and Admissibility. Arbitral Tribunal, August 4, 2000

American Journal of International Law

Volumn 95, Issue 1, 2001, Pages 162-171

  Kwiatkowska, Barbara ^a  

^a NONE

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EID: 0039147701     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/2642055     Document Type: Article

References (71)

1. See Colum Lynch, Palestinians Lose Bid for U.N. Observers, WASH. POST, Dec. 19, 2000, at A34; Susan Sontag, Barak Declares Early Elections, in Surprise Move, N.Y. TIMES, Nov. 29, 2000, at A1 (includes chart, "Two Months of Bloodshed"); Keith B. Richburg, Young Palestinians Suffer Bone-Shattering Experience, WASH. POST, Nov. 30, 2000, at A1. SOUTHERN BLUEFIN TUNA (Australia and New Zealand v. Japan). Jurisdiction and Admissibility. Arbitral Tribunal, August 4, 2000.
2. See Colum Lynch, Palestinians Lose Bid for U.N. Observers, WASH. POST, Dec. 19, 2000, at A34; Susan Sontag, Barak Declares Early Elections, in Surprise Move, N.Y. TIMES, Nov. 29, 2000, at A1 (includes chart, "Two Months of Bloodshed"); Keith B. Richburg, Young Palestinians Suffer Bone-Shattering Experience, WASH. POST, Nov. 30, 2000, at A1. SOUTHERN BLUEFIN TUNA (Australia and New Zealand v. Japan). Jurisdiction and Admissibility. Arbitral Tribunal, August 4, 2000.
3. Southern Bluefin Tuna (Austl. & N.Z. v. Japan) Jurisdiction and Admissibility, Award (UN Law of the Sea Arb. Trib., Aug. 4, 2000) [hereinafter Award]. The International Centre for the Settlement of Investment Disputes (ICSID) at the World Bank agreed to serve as the registrar. There were no written rules of procedure. In a departure from the usual confidentiality of arbitration proceedings, the public was allowed access to the hearings. Moreover, in addition to the order itself, both the written pleadings (except annexes and replies to questions) and transcripts of the hearings have been posted on the Web site of the ICSID, .
4. Convention for the Conservation of Southern Bluefin Tuna, May 10, 1993, 1819 UNTS 360, (entered into force May 30, 1994) [hereinafter CSBT Convention]. Articles 3 to 9, 13, 16, and 20 are quoted in Award, supra note 1, para. 23. The Convention is open for accession by other states (currently, Indonesia, the Republic of Korea, Taiwan, and some flag-of-convenience states) whose vessels fish for southern bluefin tuna (SBT) or through whose waters the stock migrates.
5. Since none of the three parties had made a declaration under Article 287 of the Law of the Sea Convention, they were deemed to have accepted arbitration in accordance with its Annex VII. See United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) (entered into force Nov. 16, 1994) [hereinafter LOS Convention]; UNITED NATIONS CONVENTION ON THE LAW OF THE SEA AND THE AGREEMENT FOR THE IMPLEMENTATION OF PART XI OF THE CONVENTION WITH INDEX AND EXCERPTS FROM THE FINAL ACT OF THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA, UN Sales No. E.97.V.10 (1997). For the current status of the Convention, see UN LAW OF THE SEA BULL., No. 42, at 1 (2000).
6. Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), Provisional Measures, Order, ITLOS Cases Nos. 3 and 4 (Aug. 27, 1999), reprinted in 38 ILM 1624 (1999) [hereinafter ITLOS order]. Paras. 40-87 and 90 of the ITLOS order are quoted in Award, supra note 1, para. 35. The ITLOS order and other materials for the ITLOS proceedings are available online at . See Barbara Kwiatkowska, Case Report: Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), 94 AJIL 150 (2000).
7. President Schwebel (UnitedStates) and Judges Chusei Yamada (Japan), Florentino Feliciano (Philippines),and Per Tresselt (Norway) voted in favor. Judge Sir Kenneth Keith (New Zealand) dissented. It may be of interest to note that in his opening address to the International Law Association in London on July 25, 2000, Judge Schwebel reiterated - in the context of discussing the proliferation of various specialized and regional courts and tribunals - the unique role of the International Court of Justice (ICJ) as the principal judicial organ of the United Nations and as the only truly universal judicial body of general jurisdiction. Stephen M. Schwebel, Opening Address to the International Law Association (July 25, 2000), in INTERNATIONAL LAW ASSOCIATION, REPORT OF THE SIXTY NINTH CONFERENCE, LONDON (forthcoming).
8. See Award, supra note 1, para. 72.
9. Id., para. 29; see id., paras. 38(a)-(e), 51.
10. See id., para. 41 (c) (citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), Advisory Opinion, 1950 ICJ REP. 74 (Mar. 30)), (d)-(f), 43, 50.
11. See id., para. 41 (h), (k); Reply on Jurisdiction: Australia and New Zealand at paras. 39-53, 106, Award, supra note 1 (arialvzing the respective ICJ jurisprudence) [hereinafter A/NZ reply]. Materials on all ICJ cases are available online at .
12. See Award, supra note 1, para. 48 (citing Fisheries Jurisdiction (Spain v. Can.), Jurisdiction, Judgment, 1998 ICJ REP. 432, paras. 30-31 (Dec. 4) [hereinafter Fisheries Jurisdiction (Spain v. Can.)]); see also Barbara Kwiatkowska, Case Report: Fisheries Jurisdiction (Spain v. Canada), 93 AJIL 502 (1999).
13. See Award, supra note 1, paras. 50-51.
14. Id., para. 52.
15. See id. On Article 30 of the Vienna Convention of the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, reprinted in 8 ILM 679 (1969), as supplying elements upon which the provisions of Article 311-centered around the compatibility standard - were constructed, see Bernard H. Oxman, The UNCLOS III Ninth Session (1980), 75 AJIL 211, 249-50 (1981); 5 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982: A COMMENTARY 235-36, 241, 243 (Shabtai Rosenne & Louis B. Sohn eds., 1989).
16. See id. On Article 30 of the Vienna Convention of the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, reprinted in 8 ILM 679 (1969), as supplying elements upon which the provisions of Article 311-centered around the compatibility standard - were constructed, see Bernard H. Oxman, The UNCLOS III Ninth Session (1980), 75 AJIL 211, 249-50 (1981); 5 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982: A COMMENTARY 235-36, 241, 243 (Shabtai Rosenne & Louis B. Sohn eds., 1989).
17. Article 16 of the CSBT Convention, supra note 2, provides that: 1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those 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 of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above. 3. In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention. The Annex forms an integral part of this Convention.
18. See Award, para. 53. Cf. Hearings, vol. I (Rosenne, Counsel for Japan), Award, supra note 1. Hearings were held on May 7, 8, 10, and 11, 2000 (vols. I-IV, respectively) [hereinafter Hearings I-IV].
19. Award, supra note 1, para. 54.
20. Id.
21. See id., para. 55.
22. See id; see also ITLOS order, supra note 4, para. 60.
23. Award, supra note 1, paras. 38 (h); see id., paras. 38(a)-(b), 39(a)-(b).
24. International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 UNTS 72 [hereinafter ICRW]; Protocol to the International Convention for the Regulation of Whaling, Nov. 19, 1956, 338 UNTS 366. An express reference in para. 38(i) of the Award to the ICRW might have been related to problems shared by Japan and Norway with respect to the U.S./UK- and A/NZ-sponsored moratorium on commercial whaling, which has been circumvented by Norway through the objection procedure, and by Japan through scientific research catches. In view of largely the same membership of Japan's delegations to meetings under the ICRW and the CSBT Convention, the experimental fishing program for SBT was likely modeled on the scientific research program carried out by Japan under the ICRW. See William Aron, William Burke, & Milton M. R. Freeman, The Whaling Issue, 24 MARINE POL'Y 179 & 501 (2000). On the threat that the United States would impose economic sanctions on Japan if it did not curtail its expanded research whaling, see Japan Is Barred from Fishing in U.S. Waters in Whaling Fight, INT'L. HERALD TRIB., Sept. 14, 2000, at 4, and Sean D. Murphy, Contemporary Practice of the United States, 95 AJIL 132 (2001).
25. International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 UNTS 72 [hereinafter ICRW]; Protocol to the International Convention for the Regulation of Whaling, Nov. 19, 1956, 338 UNTS 366. An express reference in para. 38(i) of the Award to the ICRW might have been related to problems shared by Japan and Norway with respect to the U.S./UK- and A/NZ-sponsored moratorium on commercial whaling, which has been circumvented by Norway through the objection procedure, and by Japan through scientific research catches. In view of largely the same membership of Japan's delegations to meetings under the ICRW and the CSBT Convention, the experimental fishing program for SBT was likely modeled on the scientific research program carried out by Japan under the ICRW. See William Aron, William Burke, & Milton M. R. Freeman, The Whaling Issue, 24 MARINE POL'Y 179 & 501 (2000). On the threat that the United States would impose economic sanctions on Japan if it did not curtail its expanded research whaling, see Japan Is Barred from Fishing in U.S. Waters in Whaling Fight, INT'L. HERALD TRIB., Sept. 14, 2000, at 4, and Sean D. Murphy, Contemporary Practice of the United States, 95 AJIL 132 (2001).
26. International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 UNTS 72 [hereinafter ICRW]; Protocol to the International Convention for the Regulation of Whaling, Nov. 19, 1956, 338 UNTS 366. An express reference in para. 38(i) of the Award to the ICRW might have been related to problems shared by Japan and Norway with respect to the U.S./UK- and A/NZ-sponsored moratorium on commercial whaling, which has been circumvented by Norway through the objection procedure, and by Japan through scientific research catches. In view of largely the same membership of Japan's delegations to meetings under the ICRW and the CSBT Convention, the experimental fishing program for SBT was likely modeled on the scientific research program carried out by Japan under the ICRW. See William Aron, William Burke, & Milton M. R. Freeman, The Whaling Issue, 24 MARINE POL'Y 179 & 501 (2000). On the threat that the United States would impose economic sanctions on Japan if it did not curtail its expanded research whaling, see Japan Is Barred from Fishing in U.S. Waters in Whaling Fight, INT'L. HERALD TRIB., Sept. 14, 2000, at 4, and Sean D. Murphy, Contemporary Practice of the United States, 95 AJIL 132 (2001).
27. Award, supra note 1, para. 38 (i) ; see id. para. 38(j). The texts of special treaties were submitted to the Arbitral Tribunal in voluminous Annex 47, Memorial of Japan, Award, supra note 1 [hereinafter Annex 47], and were addressed in paras. 137-45 of that memorial and in Hearings I & III, supranote 15 (Lauterpacht, Counsel forjapan).
28. United Nations 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, August 4, 1995, UN LAW OF THE SEA BULL., No. 29, at 25 (1995), reprinted in 34 ILM 1542 (1995) [hereinafter Straddling Stocks Agreement]. The Agreement was signed, but not yet ratified, by Australia, Japan, and New Zealand. For the current status of the Agreement, see UN LAW OF THE SEA BULL., No. 43, at 1 (2000).
29. See Award, supra note 1, para. 41 (i); Hearing II, supranote 15 (Burmester, Counsel for Austl.).
30. Annex 47, supra note 22.
31. See Award, supra note 1, para. 41 (k); Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS: THE LEGAL TEXTS 404 (1994), reprinted in 33 ILM 1144 (1994) [hereinafter DSU].
32. See Award, supra note 1, para. 56; supra text accompanying note 24; see also Award, supra note 1, para. 54; supra text accompanying note 16.
33. Award, supra note 1, para. 57.
34. Id.; see supra text accompanying note 15. For reaffirmation of the rule of the ordinary meaning, see Kasikili/ Sedudu Island (Bots./Namib.), Merits, Judgment, para. 20 (Dec. 13, 1999), reprinted in 39 ILM 310 (2000).
35. Award, supra note 1, para. 57; see also id., para. 70.
36. Id., para. 57.
37. See id., para. 58; Antarctic Treaty, Art. XI, Dec. 1, 1959, 12 UST 794, 402 UNTS 71.
38. Award, supra note 1, para. 59.
39. Id., para. 62.
40. See id, para. 63.
41. Id.; see supra text accompanying notes 21-23; see also Award, supra note 1, para. 20; Hearing III, supra note 15 (questions of arbitrators); Hearing IV, supra note 15 (question of Keith, Arbitrator).
42. See Award, supra note 1, para. 64 (noting that A/NZ did not hold Japan to any independent breach of this fundamental obligation); cf. id., para. 41 (c); A/NZ reply, supra note 9, paras. 38, 68, 180-84. For reaffirmation of principle of good faith, see Land and Maritime Boundary (Cameroon v. Niger), Preliminary Objections, Judgment, 1998 ICJ REP. 275, 296 (June 11).
43. Award, supra note 1, para. 71; see supra text accompanying note 23.
44. Award, supra note 1, Sep. Op. Keith, J., para. 25; see id., para. 29.
45. See id., paras. 17-19.
46. See Award, supra note 1, para. 66.
47. Id., para. 67.
48. W., para. 65. This impact is precisely that which is described as "preventive diplomacy" in Statement by Judge Stephen M. Schwebel, President of the International Court of Justice, to the Fifty-second Session of the General Assembly in Connection with the Annual Report of the International Court of Justice, UN Doc A/52/PV.36 at 1, 2-3 (1997), reprinted in 92 AJIL 612 (1998), obtainable from .
49. See Award, supra note 1, paras. 67-70.
50. See id., para. 68; Hearing I, supranote 15 (Yachi, Agent for Japan); Hearing III, supra note 15 (Ando, Counsel for Japan; Yachi, Agent for Japan).
51. Award, supra note 1, para. 70.
52. Id. This language corresponds to that of a classic provisional measure indicated by the ICJ and also to that of the ITLOS in the first such measure it prescribed - which was in this very case.
53. Stephen M. Schwebel, The Impact of the International Court of Justice, in BOUTROS BOUTROS-GHALl, AMICORUM DISCIPULORUMQUE LIBER: PEACE, DEVELOPMENT, DEMOCRACY 663, 668 (1998).
54. Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, June 16, 1994, TIAS No. 11,465, reprinted in 34 ILM 67 (1995). Article XIII of the Convention addresses dispute resolution. But note the interpretation of the effect of the compulsory-jurisdiction provisions of the LOS Convention in relation to the Pollock Convention and some other fisheries instruments, in Message from the President Transmitting the United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI to the Senate of the United States (Oct. 12, 1994), reprinted in 34 ILM 1393 (1995) [hereinafter Message from the Resident]. The relevance of the U.S. interpretation to the current case is discussed in Bernard H. Oxman, Who Won the Southern Bluefin Tuna Arbitration? Paper Presented at the Third Trilateral Conference of the ASIL, CCIL, and JAIL, Ottawa, Can. (Oct. 26, 2000) (on file with author).
55. Agreement Between the Government of Iceland/Norway, the Government of Norway, and the Government of the Russian Federation Concerning Certain Aspects of Co-operation in the Area of Fisheries, May 15, 1999, 14 INT'L J. MARINE & COASTAL L. 484 (1999). Article 10 provides for dispute resolution.
56. Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, TIAS No. 10,240, 1329 UNTS 47, reprinted in 19 ILM 837 (1980). Set also, e.g., UN Environmental Programme (UNEP) Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Mar. 24, 1983, Art. 23, TIAS No. 11,085, reprinted in 22 ILM 221 (1983); UNEP Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, Nov. 25, 1986, Article 26, 1982 UNTS 4, reprinted in 26 ILM 38 (1987); UN Food and Agriculture Organization Agreement to Promote Compliance with International Conservation and Management Measures by FishingVessels on the High Seas, Nov. 24, 1993, Art. 9, 33 ILM 968 (1994); Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Continuous Atlantic Areas, Nov. 24, 1996, Art. XII, 36 ILM 777 (1997).
57. See also, e.g., Convention on the Prohibition of Fishing with Long Driftnets in the South Pacific, Nov. 24, 1989, 29 ILM 1449 (1990), and its Protocols I and II, Oct. 20, 1990, 29 ILM 1462, 1463 (1990); Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, July 9, 1992, 32 ILM 136 (1993).
58. See supra text accompanying note 22.
59. Apart from the prominent GATT/WTO DSU system, supra note 26, see, e.g., the UNEP Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution, Apr. 24, 1978 Art. XXV, 1140 UNTS 133, reprinted in 17 ILM 511 (1978); the International Maritime Organization Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, Art. 16, S. TREATY DOC. No. 101-1 (1989), 1678 UNTS 201, reprinted in 27 ILM 668 (1988); the Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, Arts. 18-20, 30 ILM 1455 (1991); the UN Framework Convention on Climate Change, June 5, 1992, Art. 14, 1771 UNTS 108, reprinted in 31 ILM 849 (1992), and its Kyoto Protocol, Aug. 20, 1998, Art. 19, 37 ILM 22 (1998) (a post-UN Conference on Environment and Development (UNCED) global treaty); the UNEP Convention on Biological Diversity, June 5, 1992, Art. 27, 31 ILM 818 (1992) and its Cartagena Protocol on Biosafety, May 15, 2000, 39 ILM 1027 (2000) (also a post-UNCED global treaty); the Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, Art. 32, 32 ILM 1069 (1993); the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Nov. 7, 1996, Art. 16, 36 ILM 1 (1997) [hereinafter 1996 London Protocol]; and the Galapagos Framework Agreement for the Conservation of Living Marine Resources on the High Seas of the Southeast Pacific Aug. 14, 2000, Art. 14 (on file with author).
60. See supra text accompanying note 38.
61. 1996 London Protocol, supra note 54.
62. Report, Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, 7th Sess., Annex 6, Sept. 4, 2000, obtainable from . The relevant provision is Article 31.
63. Draft Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean May 12, 2000, Art. 23, and Draft Agreement for the Establishment of a South West Indian Ocean Fisheries Commission, July 12, 2000, Art. VII. Both texts are on file with author.
64. Award, supra note 1, para. 62; see supra text accompanying note 34.
65. See ITLOS order, supra note 4, para. 70; Message from the President, supra note 49, at 41.
66. See Dolliver Nelson, The Development of the Legal Regime of High Seas Fisheries, in INTERNATIONAL LAW AND SUSTAINABLE DEVELOPMENT 113, 132-33 (Alan Boyle & David Freestone eds., 1999) (citing Fisheries Jurisdiction (U.K. v. Ice.), Merits, Judgment, 1974 ICJ REP. 3, 138 (July 25) (Diss. Op. Gros, J.)).
67. Fisheries Jurisdiction (Spain v. Can.), supranole 10.
68. See Schwebel, supra note 48, at 669-70; Stephen M. Schwebel, The Inter-Active Influence of the International Court of Justice and the International Law Commission, in LlBER AMICORUM 'IN MEMORIAM' OF JUDGE JOSÉ MARÍA RUDA 479, 483, 487-88, 504-05 (Calixto A. Armas Barea et al. eds., 2000).
69. See Schwebel, supra note 48, at 669-70; Stephen M. Schwebel, The Inter-Active Influence of the International Court of Justice and the International Law Commission, in LlBER AMICORUM 'IN MEMORIAM' OF JUDGE JOSÉ MARÍA RUDA 479, 483, 487-88, 504-05 (Calixto A. Armas Barea et al. eds., 2000).
70. On this latter point, see supra note 1.
71. Cf. Bernard H. Oxman, The Rule of Law and the United Nations Convention on the Law of the Sea, 7 EUR. J. INT'L L. 353, 367-71 (1996).