The Australia and New Zealand v Japan Southern Bluefin Tuna (Jurisdiction and Admissibility) Award of the First Law of the Sea Convention Annex VII Arbitral Tribunal

2001 ◽  
Vol 16 (2) ◽  
pp. 239-293 ◽  
Author(s):  
Barbara Kwiatkowska
Keyword(s):  
New Zealand ◽  
Bluefin Tuna ◽  
Fundamental Principle ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
Compulsory Arbitration ◽  
Wide Range ◽  
The Future ◽  
Questions And Answers ◽  
Southern Bluefin Tuna

AbstractThe Southern Bluefin Tuna (Jurisdiction and Admissihilily) Award of 4 August 2000 marked the first instance of the application of compulsory arbitration under Part XV, Section 2 of the 1982 UN Law of the Sea Convention and of the exercise by the Annex VII Tribunal of la compétence de la compétence pursuant to Article 288(4) over the merits of the instant dispute. The 72-paragraph Award is a decision of pronounced procedural complexity and significant multifaceted impacts of which appreciation requires an in-depth acquaintance with procedural issues of peaceful settlement of disputes in general and the-law-of-the-sea-related disputes in particular. Therefore, the article surveys first the establishment of and the course of proceedings before the five-member Annex VII Arbitral Tribunal, presided over by the immediate former ICJ President, Judge Stephen M. Schwebel, and also comprising Judges Keith, Yamada. Feliciano and Tresselt. Subsequently, the wide range of specific paramount questions and answers of the Tribunal are scrutinised against the background of arguments advanced by the applicants (Australia and New Zealand) and the respondent (Japan) during both written and oral pleadings, including in reliance on the extensive ICJ jurisprudence and treaty practice concerned. On this basis, the article turns to an appraisal of the impacts of the Arbitral Tribunal's paramount holdings and its resultant dismissal of jurisdiction with the scrupulous regard for the fundamental principle of consensuality. Amongst such direct impacts as between the parties to the instant case, the inducements provided by the Award to reach a successful settlement in the future are of particular importance. The Award's indirect impacts concern exposition of the paramount doctrine of parallelism between the umbrella UN Convention and many compatible (fisheries, environmental and other) treaties, as well as of multifaceted, both substantial and procedural effects of that parallelism. All those contributions will importantly guide other courts and tribunals seised in the future under the Convention's Part XV, Section 2.

The Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) Cases

2000 ◽  
Vol 15 (1) ◽  
pp. 1-36 ◽  
Author(s):  
Barbara Kwiatkowska
Keyword(s):  
New Zealand ◽  
Bluefin Tuna ◽  
Prima Facie ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
International Tribunal ◽  
Southern Bluefin Tuna ◽  
The Law

AbstractThe Southern Bluefin Tuna cases before the International Tribunal for the Law of the Sea resulted from disagreement between Australia, New Zealand and Japan related to the carrying out by Japan of an experimental fishing programme within the framework of the Convention for the Conservation of Southern Bluefin Tuna. The cases were the first instance of incidental proceedings on provisional measures under Article 290(5) of the LOS Convention and Article 25 of the ITLOS Statute, according to which ITLOS may prescribe provisional measures "if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires". The article considers the parties' arguments for and against the use of provisional measures, considers the provisional measures ordered by ITLOS and the reasons therefor by comparison to the practice of the ICJs, and finally considers the establishment of an Arbitral Tribunal to hear the merits of the substantive case.

I. The Southern Bluefin Tuna Arbitration

2001 ◽  
Vol 50 (2) ◽  
pp. 447-452 ◽  
Author(s):  
Malcolm D. Evans ◽  
Alan Boyle
Keyword(s):  
New Zealand ◽  
Dispute Settlement ◽  
Bluefin Tuna ◽  
Prima Facie ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
The Pacific ◽  
Southern Bluefin Tuna ◽  
Tuna Fishing ◽  
The Law

Readers of last October's I.C.L.Q. will recall that this case started life in the International Tribunal for the Law of the Sea when Australia and New Zealand were granted provisional measures against Japanese high seas tuna fishing in the Pacific.1 That Tribunal had held that the provisions of the 1982 UN Convention on the Law of the Sea (“1982 UNCLOS”) invoked by Australia and New Zealand appeared to afford a basis on which the jurisdiction of an arbitral tribunal might be founded; that the fact that the 1993 Convention on Conservation of Southern Bluefin Tuna applied between the parties did not preclude recourse to the compulsory dispute settlement procedures in Part XV of the 1982 UNCLOS; and that an arbitral tribunal would prima facie have jurisdiction over the merits of the dispute.2 Notwithstanding this necessarily provisional view, when the parties then proceeded to arbitration, Japan maintained its initial preliminary objections, and the award handed down in August 2000 thus deals only with the jurisdiction of the arbitrators.3 The facts and background to the case are set out in the earlier case-note and need not be repeated here.

Reflections on the Philippines/China Arbitration

2016 ◽  
Vol 15 (2) ◽  
pp. 305-325 ◽  
Author(s):  
Yoshifumi Tanaka
Keyword(s):  
South China Sea ◽  
South China ◽  
Bluefin Tuna ◽  
The Philippines ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
Arbitral Award ◽  
Southern Bluefin Tuna ◽  
Informal Communications ◽  
Insight Into

The South China Sea dispute between the Philippines and China can be viewed as a mixed dispute that involves both territorial and maritime issues. In this regard, an issue arises concerning whether an Annex vii Arbitral Tribunal under the un Convention on the Law of the Sea can adjudicate a mixed dispute. The Philippines/China arbitral award of 29 October 2015, along with the 2015 Mauritius/United Kingdom arbitration, sheds some light on this issue. Furthermore, with regard to Article 281 of the Convention, the Tribunal in the Philippines/China arbitration adopted an interpretation that is different from the interpretation adopted by the Annex vii Arbitral Tribunal in the 2000 Southern Bluefin Tuna arbitration. The Philippines/China arbitral award provides important insight into the interpretation of Article 281. In addition, the Tribunal’s treatment of China’s informal communications merits particular attention.

II International Tribunal For The Law Of The Sea The Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan): Order For Provisional Measures Of 27 August 1999

2000 ◽  
Vol 49 (4) ◽  
pp. 979-990 ◽  
Author(s):  
R. R. Churchill
Keyword(s):  
Bluefin Tuna ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
International Tribunal ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Southern Bluefin Tuna ◽  
United Nations Convention ◽  
The Law

Under Part XV of the 1982 United Nations Convention on the Law of the Sea, any dispute concerning the interpretation or application of the Convention which cannot be settled by the consensual means set out in section 1 of that Part, may be referred by any party to the dispute for compulsory settlement under section 2. There are four possible fora for such settlement—the International Court of Justice, the International Tribunal for the Law of the Sea (hereafter ITLOS), an arbitral tribunal constituted in accordance with Annex VII of the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII. If the parties to a dispute have made a declaration under Article 287 (which is optional) specifying their choice of forum, and their choices coincide, that body will be the forum for the settlement of the dispute. If their choices do not coincide or if not all parties have made a declaration, the forum for settlement will be an Annex VII arbitral tribunal.1

The Other Australia/Japan Living Marine Resources Dispute

2017 ◽  
Vol 1 (1) ◽  
pp. 1-91
Author(s):  
Andrew Serdy
Keyword(s):  
Bluefin Tuna ◽  
Law Of The Sea ◽  
Marine Resources ◽  
Arbitral Tribunal ◽  
International Court Of Justice ◽  
International Courts ◽  
Court Of Justice ◽  
International Court ◽  
Southern Bluefin Tuna ◽  
United Nations Convention

In 2000 an arbitral tribunal formed under Annexviito the United Nations Convention on the Law of the Sea denied its own jurisdiction to hear the case brought against Japan by Australia and New Zealand over Japan’s unilateral experimental fishing programme for southern bluefin tuna. Despite the criticism the tribunal’s reasoning attracted, it was widely supposed that the applicants would have failed on the merits because of the reluctance of international courts and tribunals to delve into scientific matters, as would have been necessary with the dispute’s underlying cause being the parties’ scientific disagreements regarding both the tuna stock itself and the nature and risks of the programme. In 2014, however, the International Court of Justice showed no such reticence in deciding in Australia’s favour the case against Japan’s scientific whaling, based partly on flaws it identified in the design of that experiment. Reviewing the evolution in the tuna experiment’s design, the propositions it was designed to (dis)prove and the use to which Japan proposed to put that proof, this paper suggests that similar factors were at play in both disputes and that a similar outcome of the tuna case, though not inevitable, would have been amply justified.

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