SOUTHERN BLUEFIN TUNA CASES

Australia and New Zealand v. Japan

Reply on Jurisdiction

Australia and New Zealand

Volume I

Text

31 March 2000

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Table of Contents

Paragraph No. CHAPTER 1. INTRODUCTION AND OVERVIEW ........................................................................ 1-23

(1) Background to these proceedings ................................................................. 2-3 (2) Conclusions of ITLOS as to the prima facie jurisdiction of this Tribunal ....... 4-21

(a) The reasoning of the Order itself ............................................................ 5-11 (i) Whether there is a dispute between the parties .............................. 6 (ii) Whether the dispute involves questions of science, not law ........... 7 (iii) Whether the dispute involves the interpretation or

application of UNCLOS ............................................................... 8 (iv) Whether Part XV jurisdiction is excluded by the

1993 Convention .......................................................................... 9 (v) Whether the parties have exhausted other procedures for peaceful

settlement ..................................................................................... 10-11 (b) Position of judges in separate and dissenting opinions ............................ 12-19 (c) Indications for the present Tribunal ........................................................ 20-21

(3) The structure of this Reply ............................................................................ 22-23

CHAPTER 2. THE JURISDICTIONAL REQUIREMENTS OF UNCLOS, PART XV ARE SATISFIED ...................................................................................................... 24-94

(1) The character of UNCLOS (including Part XV) as a regime for the law of the sea ...................................................................................................... 25-31

(2) There is a dispute concerning the interpretation or application of UNCLOS ................................................................................................. 32-71 (a) There is a legal dispute between the parties over the conservation and

management of SBT .............................................................................. 34-41 (i) UNCLOS obligations are engaged by the dispute, which

accordingly is one “concerning the interpretation or application” of UNCLOS .............................................................. 41

(b) The meaning of the phrase “concerning the interpretation or application of” in compromissory clauses ............................................... 42-60

(i) The present dispute concerns the interpretation or application of UNCLOS ............................................................... 54-60

(c) A/NZ invoked UNCLOS in the course of the dispute ............................. 61-71

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(3) The dispute has been submitted to this Tribunal in accordance with Part XV ........................................................................................................ 72-92 (a) The attempt to settle the dispute by peaceful means ............................... 73 (b) The parties have failed to achieve a settlement ....................................... 74-89 (c) There is no agreement to submit the dispute to a procedure

that entails a binding decision ................................................................. 90-91 (d) There was an exchange of views between the parties .............................. 92

(4) Conclusion ................................................................................................... 93-94 CHAPTER 3.

THE TRIBUNAL’S JURISDICTION UNDER PART XV IS NOT EXCLUDED BY THE 1993 CONVENTION ............................................................ 95-164

(1) The characterisation of the dispute ................................................................ 98-103

(a) Japan’s argument for exclusive characterisation of the dispute under the 1993 Convention .................................................................... 98

(b) The characterisation of the dispute in the diplomatic exchanges .............................................................................................. 99-103

(2) The relation between UNCLOS and the 1993 Convention: Japan’s legal arguments for excluding its UNCLOS obligations .................... 104-164 (a) The 1993 Convention does not “cover” UNCLOS conservation

obligations ............................................................................................. 109-128 (i) Article 64 ..................................................................................... 110-114 (ii) Article 116 ................................................................................... 115-119 (iii) Article 117 ................................................................................... 120-121 (iv) Article 118 ................................................................................... 122-125 (v) Article 119 ................................................................................... 126-127 (vi) Conclusion ................................................................................... 128

(b) The 1993 Convention was not intended to derogate from Part XV ......... 129-140 (c) The relation between UNCLOS and specific implementation

conventions ........................................................................................... 141-151 (i) The 1993 Convention does not and exclude substantive

UNCLOS obligations .................................................................... 143-148 (ii) Article 16 does not and cannot exclude recourse to Part XV

procedures .................................................................................... 149-150 (iii) Conclusion ................................................................................... 151

(d) Japan’s reliance on certain “general principles of law”............................. 152-163 (i) The 1993 Convention and the lex posterior principle .................... 157-159 (ii) The 1993 Convention and the lex specialis principle ..................... 160-162 (iii) Conclusion ................................................................................... 163

(3) Conclusion ................................................................................................... 164

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CHAPTER 4. JAPAN’S OBJECTIONS TO THE ADMISSIBILITY OF THE DISPUTE ARE UNFOUNDED ................................................................................................. 165-187

(1) The question of justiciability ......................................................................... 167-172 (2) The “failure” to proceed against third parties ................................................ 173-176 (3) The remedial powers of the Tribunal ............................................................. 177-179 (4) Good faith .................................................................................................... 180-184 (5) The alleged absence of a prima facie case ..................................................... 185-187

CHAPTER 5.

CONCLUSION AND SUBMISSIONS ......................................................................... 188-192 APPENDIX

Response to Certain Factual Assertions in Japan’s Memorial on Jurisdiction

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CHAPTER 1. INTRODUCTION AND OVERVIEW

1. In this Reply, Australia and New Zealand (A/NZ) respond to the arguments

presented by Japan in its Memorial on Jurisdiction of 11 February 2000. This Chapter

outlines the background to these proceedings, presents a brief overview of the arguments

and sets out the structure of the A/NZ Reply.

(1) Background to these proceedings

2. Following lengthy exchanges between the parties in an attempt to resolve the

dispute which had arisen between them over the conservation and management of

Southern Bluefin Tuna (SBT), and in particular after Japan had unilaterally embarked on a

three year “Experimental Fishing Program” (EFP), A/NZ commenced proceedings

pursuant to Part XV of the United Nations Convention on the Law of the Sea (UNCLOS).

This was done by Statements of Claim of 15 July 19991 in conformity with Annex VII,

Article 1 of UNCLOS. At the same time, in accordance with Article 290 (5) of UNCLOS,

A/NZ served on Japan parallel Requests for Provisional Measures, seeking the suspension

of the EFP pending a resolution of the dispute under Part XV.2 Japan having refused

these requests, and in the absence of agreement between the parties as to a court or

tribunal which could deal with the request for provisional measures, on 30 July 1999 A/NZ

sought provisional measures before the International Tribunal on the Law of the Sea

(ITLOS).3

3. Under UNCLOS Article 290 (5), ITLOS has jurisdiction to 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”.

1 Dossier, vol. 1, Nos. 3 & 4, respectively. 2 Dossier, vol. 1, Nos. 1 & 2, respectively.

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Following oral hearings in Hamburg on 16 and 18-20 August 1999,4 ITLOS prescribed

certain provisional measures by Order of 27 August 1999.5

(2) Conclusions of ITLOS as to the prima facie jurisdiction of this Tribunal

4. It is a matter for the present Tribunal, in the exercise of the power conferred

by Article 288 (4) of UNCLOS, to determine whether it has jurisdiction over the present

dispute. The Tribunal is not bound by the decision of ITLOS, which constituted only a

decision that there is prima facie jurisdiction for the purposes of Article 290. However

the Tribunal may be assisted by a review of the reasoning of ITLOS in this respect, since

no doubt was cast on the existence of jurisdiction in its Order, or for that matter in any of

the separate and dissenting opinions. The reasoning of ITLOS on this point was rather full

and followed full argument of the issues.

(a) The reasoning of the Order itself

5. ITLOS dealt with the question of prima facie jurisdiction in paragraphs 41-62

of its Order. It first recorded that A/NZ invoked the jurisdiction of Part XV pursuant to

Article 288 (1).6 It went on to consider five questions relevant to its prima facie

jurisdiction. These were as follows:

3 Dossier, vol. 1, Nos. 5 & 6, respectively. 4 For the transcript of the hearings see Dossier, vol. 3, Nos. 20-23. 5 For the separate and dissenting opinions, Dossier, vol. 4, Nos. 28.1-28.8. 6 ITLOS Order, para. 41. For the Order see Dossier, vol. 4, No. 27.

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(i) Whether there is a dispute between the parties

6. ITLOS noted the well-known definition of a “dispute” as a “disagreement on a

point of law or fact, a conflict of legal views or of interests”.7 Japan did not and does not

contest that there is a dispute between itself and A/NZ in relation to SBT.

(ii) Whether the dispute involves questions of science, not law

7. However, Japan did (and does) argue that the dispute is not a legal as distinct from

a scientific dispute. ITLOS said only that, in its view “the differences between the parties

also concern points of law”.8 The use of the word “also” clearly implies that ITLOS did

not accept the dichotomy between “law” and “science” on which Japan relied.

(iii) Whether the dispute involves the interpretation or application of

UNCLOS

8. ITLOS also rejected Japan’s argument based on a dichotomy between UNCLOS

and the 1993 Convention. It noted that:

“...under article 64, read together with articles 116 to 119, of the Convention, States Parties to the Convention have the duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species”.9

7 ITLOS Order, para. 44, citing Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2 p. 11

(1924), and South West Africa, Preliminary Objections, I.C.J. Reports 1962, p.328. 8 ITLOS Order, para. 43. 9 Ibid., para. 48.

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In its view:

“...the conduct of the parties within the Commission for the Conservation of Southern Bluefin Tuna established in accordance with the Convention of 1993, and in their relations with non-parties to that Convention, is relevant to an evaluation of the extent to which the parties are in compliance with their obligations under the Convention on the Law of the Sea.”10

Moreover, it concluded that:

“...the fact that the Convention of 1993 applies between the parties does not exclude their right to invoke the provisions of the Convention on the Law of the Sea in regard to the conservation and management of southern bluefin tuna…”.11

For these reasons, according to ITLOS, “the provisions of the Convention on the Law of

the Sea invoked by Australia and New Zealand appear to afford a basis on which the

jurisdiction of the arbitral tribunal might be founded…”12

(iv) Whether Part XV jurisdiction is excluded by the 1993 Convention

9. On this point ITLOS confined itself to setting out, accurately, the views of the

parties:

“53. Considering that Japan argues that recourse to the arbitral tribunal is excluded because the Convention of 1993 provides for a dispute settlement procedure; 54. Considering that Australia and New Zealand maintain that they are not precluded from having recourse to the arbitral tribunal since the Convention of 1993 does not provide for a compulsory dispute settlement procedure entailing a binding decision as required under article 282 of the Convention on the Law of the Sea…”.

It then concluded…

10 Ibid., para. 50. 11 Ibid., para. 51. 12 Ibid., para. 52.

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“that, in the view of the Tribunal, the fact that the Convention of 1993 applies between the parties does not preclude recourse to the procedures in Part XV, section 2, of the Convention on the Law of the Sea…”.13

(v) Whether the parties have exhausted other procedures for peaceful

settlement

10. On this issue, the Tribunal was a little more expansive. It noted that…

“negotiations and consultations have taken place between the parties and that the records show that these negotiations were considered by Australia and New Zealand as being under the Convention of 1993 and also under the Convention on the Law of the Sea…”.14

It also noted that provisions of UNCLOS had been invoked by A/NZ,15 and that they had

“stated that the negotiations had terminated”.16 It accordingly concluded that:

“...in the view of the Tribunal, a State Party is not obliged to pursue procedures under Part XV, section 1, of the Convention when it concludes that the possibilities of settlement have been exhausted…”17

Thus the prerequisites for invoking Part XV, section 2, in its view, had been fulfilled.18

11. For all these reasons ITLOS found “that the arbitral tribunal would prima facie

have jurisdiction over the disputes”.19 In doing so, of course, it used the exact language of

Article 290 (5), which only requires a “prima facie” finding of jurisdiction. But there is no

trace in the reasoning that ITLOS entertained any doubts on that score.

(b) Position of judges in separate and dissenting opinions

13 Ibid., para. 55. 14 Ibid., para. 57. 15 Ibid., para. 58. 16 Ibid., para. 59. 17 Ibid., para. 60. 18 Ibid., para. 61. 19 Ibid., para. 62.

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12. Twelve members of ITLOS appended separate opinions to the Order, and

there was one outright dissent.

13. Vice-President Wolfrum and Judges Caminos, Marotta Rangel, Yankov,

Anderson and Eiriksson appended a joint declaration, dealing with the substance of the

provisional measures ordered, and drawing attention in particular to the relevance of

Article 64 of the Convention to the dispute between the parties. Judge Eiriksson also

dissented from two of the operative paragraphs on grounds that they were too general and

“broadly worded”.

14. Judge Warioba dissented in relation to two of the operative paragraphs, on the

grounds that they were properly a matter for the present Tribunal to deal with on the

merits.

15. Judge Laing made a number of observations relating to the substance of the

provisional measures ordered by ITLOS, emphasising the importance of compulsory

dispute resolution under the various annexes to UNCLOS.

16. Judge Treves dealt with the criteria for provisional measures, in particular that

of urgency.

17. Judges Yamamoto and Park dealt with certain measures taken by Australia

against Japanese fishing vessels in the context of the EFP, referring in particular to

operative paragraph 1 (d) of the Order. Nonetheless, Judge Park voted in favour of all

operative paragraphs, while Judge Yamamoto voted in favour of all except operative

paragraphs 1(c) and (d).

18. Only two judges dealt separately with the question of jurisdiction. Judge ad

hoc Shearer did so at some length. He set out in his separate opinion the reasons for

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concluding not merely that the present Tribunal would prima facie have jurisdiction, but

that the jurisdiction “is to be regarded as clearly established”. In particular he described

Japan’s argument that there was no dispute under relevant provisions of UNCLOS as

“highly artificial and without substance”. In his view, because the 1993 Convention

sought “to give effect to the principles of article 64” of UNCLOS, a dispute about the

substantive implementation of the 1993 Convention, and about the extent of the parties’

obligations to cooperate in the management of SBT, was a dispute under UNCLOS.

Moreover, in his view, the procedures referred to in Article 16 of the 1993 Convention

“are circular and do not entail a binding decision”: they therefore do not qualify as

procedures which could exclude the “compulsory procedures entailing binding decisions”

for which Articles 286-296 of UNCLOS provide. Japan’s argument that there had been

no exchange of views as provided for in Article 283 of UNCLOS involved a “highly

artificial” separation of questions arising under UNCLOS from those arising under the

1993 Convention, whereas, in his view it was “to be regarded as implicit that the

negotiations were conducted within the framework of both instruments”.

19. The other judge to deal separately with the question of jurisdiction was Judge

Vukas. He alone dissented from the Order as a whole on the ground that there was no

“urgency” for provisional measures as required by Article 290 (5) of UNCLOS. But he

expressly affirmed that this Tribunal prima facie has jurisdiction, in the following passage:

“The arbitral tribunal to be established in accordance with Annex VII to the Convention has prima facie jurisdiction in this case, as it concerns not only the implementation of the 1993 Convention for the Conservation of Southern Bluefin Tuna, but also the interpretation and application of the provisions of the Law of the Sea Convention, dealing with conservation and management of the living resources of the exclusive economic zone and of the high seas (paragraphs 48 to 50 of the Order). The Applicants are entitled to submit their request to the arbitral tribunal, as no settlement has been reached by recourse to Part XV, section 1, of the Law of the Sea Convention. This condition for the submission of a dispute to the arbitral tribunal, provided for in article 286 of the Convention, has been fulfilled by the Applicants by way of several exchanges of views they had with Japan in 1998 and 1999, concerning the fishing for southern bluefin tuna, particularly Japan's experimental fishing programme. These consultations and negotiations

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concerned the interpretation and application of both the 1993 Convention for the Conservation of Southern Bluefin Tuna and the Law of the Sea Convention but they proved to be unsuccessful. I do agree with the Tribunal that, once New Zealand and Australia considered that the possibility of settlement under section 1, of Part XV of the Convention had been exhausted, they were entitled to invoke the procedures under section 2 of Part XV (paragraphs 56 to 62 of the Order).”20

(c) Indications for the present Tribunal

20. Thus ITLOS reached the conclusion that the present Tribunal has prima facie

jurisdiction over the present dispute. It did so unanimously and unequivocally. None of

the separate opinions display the slightest doubt on the question, nor do the dissenting

opinions. The two judges who separately addressed the question (including the only

dissenter from the Order as a whole) categorically affirmed and reinforced ITLOS’ own

conclusion on the point.

21. As pointed out already, this conclusion does not bind the present Tribunal,

which has the right and duty to reach its own conclusion. But the reasons for the

unanimous finding of ITLOS on the question are strong and convincing, and Japan in its

Memorial on Jurisdiction offers no new ground or argument for reaching any different

result. Moreover it should not be forgotten that the tribunals provided for under Part XV

of UNCLOS are part of a single coherent system of dispute resolution under the

Convention.

(3) The structure of this Reply

22. In any event, the case for jurisdiction in the present case is particularly clear.

This will be shown in this Reply as follows:

20 Judge Vukas, dissenting opinion, para. (2).

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• Chapter 2 will demonstrate that the present dispute is one concerning the

interpretation and application of UNCLOS within the meaning of Part XV, and

that all the jurisdictional requirements of that Part have been satisfied;

• Chapter 3 will show that the various arguments made by Japan to exclude from

the scope of the present dispute the obligations of the parties under UNCLOS (a)

are matters which go to the merits, and in any event (b) fail, both as a matter of

fact and of law;

• Chapter 4 will show that Japanese arguments relating to the inadmissibility of the

present claims likewise fail;

• Chapter 5 sets out A/NZ’s conclusions and submissions at this stage.

23. Before turning to these questions, a preliminary point should be made by way

of caveat. Much of Japan’s Memorial on Jurisdiction is taken up with arguments which

essentially relate to the merits. This is true as to a number of Japan’s legal arguments,

especially those which concern the application of UNCLOS standards to the facts of the

present case, facts which will in due course have to be determined by the Tribunal. It is

also true of Japan’s lengthy account of the “facts” of the dispute. Few of the underlying

facts are relevant at this stage of the arbitral process, and it is sufficient for present

purposes to say that A/NZ expressly reserves its position on Japan’s selective and

inaccurate presentation of the facts. However, in order to be responsive to Japan’s case as

it has been pleaded, Japan’s legal arguments in its Memorial on Jurisdiction will be dealt

with here, without prejudice to the proper characterisation of some of them as concerning

the merits of the dispute. Similarly, A/NZ set out in the Appendix a brief version of the

facts, in response to the factual presentation made in the Memorial on Jurisdiction.21 It is

not suggested that the Tribunal needs to decide between the two versions at this stage,

since these are matters which are only relevant to the merits of the dispute.

21 See below, Appendix – Response to Certain Factual Assertions in Japan’s Memorial on

Jurisdiction.

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CHAPTER 2. THE JURISDICTIONAL REQUIREMENTS OF UNCLOS,

PART XV ARE SATISFIED

24. In this Chapter, A/NZ will show that all the requirements of Part XV of

UNCLOS as to jurisdiction are satisfied. After some preliminary remarks as to the

character of UNCLOS itself, it will be shown that the present dispute is one concerning

the interpretation and application of UNCLOS within the meaning of Part XV, and that

the dispute has been “duly submitted… in accordance with Part XV”.

(1) The character of UNCLOS (including Part XV) as a regime for the law

of the sea

25. UNCLOS established a new and comprehensive legal regime for all ocean

space. In so doing it created a new legal order to promote the peaceful and sustainable

use of the oceans and seas (more than 70% of the earth’s surface). The significance of the

Convention for the international community was recognized as profound and the

importance of the obligations it contains were such that their acceptance was seen as

critically dependent upon the establishment of an effective, binding and compulsory system

for resolving all disputes concerning the interpretation and application of the Convention

as a whole. That system is set out in Part XV of the Convention, under which these

proceedings have been brought.

26. Relevant features of UNCLOS as the governing regime concerning the law of

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the sea include the following:

• The Convention is avowedly general in its scope: it applies to “all issues relating to

the law of the sea”;22

• Its purpose is “with due regard for the sovereignty of all States, [to establish] a

legal order for the seas and oceans which will… promote the peaceful uses of the

seas and oceans, the equitable and efficient utilization of their resources, the

conservation of their living resources, and the study, protection and preservation of

the marine environment”;23

• It is a framework convention which envisages that aspects of implementation will

be dealt with by the competent international organizations, or by more specific

conventions of a regional or functional character, without in any way withdrawing

its own coverage as “a legal order for the seas and oceans”;24

• In key respects, UNCLOS specifies rights and obligations not only for the States

Parties but for all States, and it thus has a certain erga omnes effect;25

• No reservations or exceptions may be made to UNCLOS, except as expressly

permitted by it;26

• The extent to which States may modify or derogate from provisions of the

Convention by specific agreements between them is expressly limited and

controlled.27

27. The character of UNCLOS as an effective and comprehensive regime is

carried through to the provisions on dispute settlement in Part XV. Not only is Part XV

mandatory, it is also general in its application. It applies unless otherwise stated to the

whole range of UNCLOS obligations.

22 UNCLOS, preambular para. 1. 23 UNCLOS, preambular para. 4. 24 This is a pervasive feature of UNCLOS. See e.g. Articles 23, 39, 64, 66 (5), 67 (3), 69 (2), 70 (3),

98 (2), 118, 123, 125 (2), 126, 197, 207 (4), 208 (5), 210 (4), 211, 212 (3), 217 (4), 237, 239. 25 Of particular relevance here are the obligations relating to fishing on the high seas and

conservation of living marine resources, which are in “all States” form: see e.g. articles 64, 87, 116, 117, 118, 119.

26 UNCLOS, Article 309. Certain declarations only are permitted: Article 310. 27 UNCLOS, Article 311. See further below, paras. 144-148.

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28. Section 2 (Articles 286-296) is entitled “COMPULSORY PROCEDURES

ENTAILING BINDING DECISIONS”, and lays down those procedures in a way which

does not permit evasion. For example, Article 287 gives parties a choice of means in

relation to dispute settlement but nonetheless deems them to have chosen arbitration

unless some other permissible forum is selected. Section 3 (Articles 297-299) is headed

“LIMITATIONS AND EXCEPTIONS TO APPLICABILITY OF SECTION 2”. The

key provision in Section 3 is Article 297. So far as it relates to fisheries, Article 297 (3)

provides as follows:

“Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with section 2...”

It goes on to provide for one, and only one, exception, which concerns the sovereign

rights of a coastal State in the exclusive economic zone.28 This indicates the importance

attached to the element of effectiveness in Part XV29.

29. The exception to Article 297 (3) does not apply in this case. Japan is not a

coastal State with respect to SBT and it has no special rights over that resource, such as a

coastal State has over resources in its EEZ.

28 Even that exception is a qualified one, since under paragraph (3) (b) there is provision for

compulsory conciliation if it is alleged that the coastal State has exercised its sovereign rights or jurisdiction arbitrarily or that it is in manifest non-compliance with its obligations of conservation. In addition the parties may specially agree to refer such a dispute to arbitration under Part XV: see Article 299. There is no suggestion that even disputes over coastal State sovereign rights are inherently non-justiciable.

29 There is an underlying theme in Japan’s Memorial on Jurisdiction that a State cannot be taken to binding dispute settlement unless it has consented to that course, that Japan has not consented to compulsory procedures in respect of this dispute and that A/NZ have somehow acted in an underhand way by instituting proceedings in these circumstances. But it is a central contention of A/NZ that by becoming a party to UNCLOS, Japan has in fact consented to compulsory and binding dispute settlement procedures for this dispute. Because of the importance of the obligations contained in the new regime, there was general agreement that the UNCLOS dispute settlement regime needed to be both mandatory and comprehensive.

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30. The conclusion to be drawn from these provisions is clear enough. UNCLOS

seeks to establish an overarching, mandatory regime for regulation of, and resolution of

disputes concerning, the law of the sea, which itself includes conservation and

management of fisheries, which in turn includes highly migratory species such as SBT.

When the drafters wanted to exclude any provision of UNCLOS from the scope of

compulsory dispute settlement under Part XV, they did so expressly, in particular in

Articles 297 and 298. But those exclusions do not apply in this case.

31. Further, these provisions clearly imply that a tribunal exercising jurisdiction to

determine its jurisdiction under Article 288 (4) of UNCLOS should lean in favour of the

effectiveness and comprehensive character of the dispute settlement regime, itself a key

aspect of the UNCLOS regime. It should not accept arguments which would minimise the

effectiveness of Part XV, lending themselves to easy evasion of its provisions.

(2) There is a dispute concerning the interpretation

or application of UNCLOS

32. In formal terms the starting point for establishing the jurisdiction of this

Tribunal in this case is Article 288 (1). This establishes two requirements for jurisdiction.

First, it requires that there be a dispute “concerning the interpretation or application of”

UNCLOS. Secondly, it also requires that the dispute be submitted to the Tribunal in

accordance with Part XV of UNCLOS, and in particular in accordance with the conditions

laid down in Section 1. This section will deal with the first requirement; the following

section of this Chapter will deal with the second.30

33. As to the first condition, it will be shown in what follows:

(a) that there is a legal dispute between the parties over the conservation and

management of SBT;

30 See below, paras. 72-92.

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(b) that the dispute involves or implicates the interpretation and application of

UNCLOS, within the meaning of Part XV; and

(c) that the relevant provisions of UNCLOS were invoked by A/NZ during the course

of the dispute.

(a) There is a legal dispute between the parties over the conservation and

management of SBT

34. It is clear that there is a dispute between the parties, and that the dispute

concerns the conservation and management of SBT. Indeed, this appears to be common

ground.

35. Japan does however argue that the dispute between the parties is not one

concerning rights and obligations but a dispute involving questions of scientific judgment

and opinions as to scientific hypotheses advanced during discussions in the CCSBT.31

This is not the case. Of course it is true that the dispute implicates questions of fact,

including scientific fact and opinion. Many disputes do so, especially those concerning

management of natural resources. But A/NZ made it clear at an early stage that this was

not just a scientific dispute, that it involved underlying questions of principle and the legal

obligations of the parties. If Japan’s narrow characterisation of the dispute were to be

accepted, it would put the future of high seas fisheries resources, including SBT, in

jeopardy, and would effectively negate the provisions of Articles 116-119. By contrast,

Article 297 (3) is explicit in referring “[d]isputes concerning the interpretation or

application of the provisions of the Convention with regard to fisheries” to the dispute

settlement provisions of Part XV, section 2. If the dispute settlement bodies under Part

XV could not deal with questions of scientific fact and opinion in the course of

discharging their express mandate, Article 297 (3) — and many other provisions of

UNCLOS — would be effectively deprived of meaning.

31 See Japan, Memorial on Jurisdiction, vol. 1, paras. 2, 171-172. The same argument was made

before ITLOS and summarily rejected: above, para. 7.

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36. This dispute is not simply about scientific disagreement. It is about the way in

which a State which is a party to UNCLOS and a member of a regional fisheries

management organization may behave in circumstances of scientific uncertainty or

management disagreement. In essence, this dispute is about the primacy of conservation

over exploitation in respect of a seriously depleted stock. The Applicants consider that

Japan is exploiting this stock in a manner that involves quite unnecessary risks and is

thereby in breach of its express obligations under Articles 64 and 116-119 of UNCLOS.

Such a dispute is a legal dispute.32

37. In any event, while there are scientific disagreements, they arise against a

background of agreement on certain key issues. In particular, there is no real

disagreement between the parties that the stock of SBT is seriously depleted and is at

historically low levels. Moreover, in the view of A/NZ there is no reliable indication of

recovery, and earlier predictions of recovery have not materialised.33 In these

circumstances the Applicants contend that States are obliged to take action to conserve

the stock. In the present case, this requires States not to seek to catch above previously

determined allowable levels and in particular not to do so if this would create a significant

added risk of non-recovery. They further assert that, in the absence of agreement or of a

scientific consensus on the action that should be taken to conserve a severely depleted

stock such as SBT, States should act in a precautionary manner, giving priority to the

sustainability of the resource for future generations. It is their view that Japan has not

only failed to take necessary action to conserve the SBT stock but further endangered that

stock by an experimental fishing programme which (a) was unilateral; (b) contained a high

component of commercial fishing; and (c) did not comply with agreed guidelines for

experimental fishing.

32 On Japan’s cognate argument that the dispute is non-justiciable see below, paras. 167-172. 33 For independent scientific evidence on these issues, the Tribunal is referred to the report of

Professor Beddington filed before ITLOS: Dossier, vol. 1, No. 7. For Professor Beddington’s oral evidence before ITLOS see Dossier, vol. 3, No. 21.

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38. In all the above respects Japan is, according to A/NZ, in breach of its

fundamental and express obligations with respect to the conservation and management of

these resources. Of course Japan’s views on the matters set out in the preceding

paragraphs are very different, and the question is one for the merits. All that matters for

present purposes is that the dispute turns on the meaning and content of the obligations

contained in Article 64 and Articles 116 to 119 of UNCLOS, on related provisions such as

Article 300, and on underlying principles of international law which are relevant to their

interpretation and application.34 It is the contention of the Applicants that the obligations

set out in those articles to cooperate in the conservation of the living resources of the high

seas were intended to be, and are, serious substantive obligations, which cannot be, or at

any rate have not been, supplanted, modified or overridden by the 1993 Convention.35

39. To summarize, this case concerns allegations of conduct which go directly to

the parties’ obligations to conserve, and to cooperate in the conservation of, SBT. Those

obligations are set down in Articles 64, 116, 117, 118 and 119 of UNCLOS. Japan has

consistently denied that its conduct amounts to a violation of those norms. As such, the

situation can be described as:

“a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations.”36

40. Accordingly, adopting the approach of the International Court in the Genocide

case, an approach which the Court described as “in line with well-established

34 See UNCLOS, Article 293, which allows this Tribunal “to apply this Convention and other rules of

international law not incompatible with this Convention”. This provision again shows the comprehensive character that jurisdiction under Part XV was intended to have.

35 For the reasons explained in further detail in Chapter 3, there is, in the view of A/NZ, no inconsistency between UNCLOS and the 1993 Convention. Even if there were, Article 293 makes it clear that UNCLOS would prevail before this Tribunal.

36 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, ICJ Reports 1950, p. 65 at p. 74.

17

jurisprudence”, by reason of the rejection by Japan of the demands formulated by A/NZ,

there is a legal dispute between the parties.37

(i) UNCLOS obligations are engaged by the dispute, which accordingly is

one “concerning the interpretation or application” of UNCLOS

41. The next question for the Tribunal is whether this dispute between the parties

is one which “concerns the interpretation or application” of UNCLOS obligations for the

purposes of Part XV. In fact that phrase occurs no fewer than fourteen times in Part XV.

In considering its application to the present case, it is useful (a) to summarize the well-

established jurisprudence on the meaning of phrases such as this in jurisdictional clauses,

and (b) to show that the present case manifestly meets the criterion of a dispute

concerning the interpretation or application of UNCLOS.

37 See Case Concerning Application of the Convention on the Prevention and Punishment of the

Crime of Genocide, Preliminary Objections, ICJ Reports 1996, p. 595 at p. 614 (para. 29), quoting Case concerning East Timor (Portugal v Australia), ICJ Reports 1995, p. 95 at p. 100 (para. 22). See also Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, ICJ Reports 1988, p. 12 at pp. 27-32.

18

(b) The meaning of the phrase “concerning the interpretation or application

of” in compromissory clauses

42. Compromissory clauses referring to disputes concerning the interpretation or

application of a treaty are extremely common. References to a “dispute concerning the

interpretation or application” of a treaty have always been read broadly, and it has not

hitherto been suggested that the fact that a dispute can be characterised in several ways

takes it outside the scope of such a clause. In other words, such references have not been

read as requiring an exclusive relation to the treaty, still less a link of factual causality such

that the interpretation of the treaty can be said to have produced the dispute. Interstate

disputes are normally caused by conflicts of interest, not by doctrinal or legal

disagreements:38 the legal issues arise because of the dispute and not vice versa. But when

a dispute has arisen, the relevance to that dispute of the legal standard is enough to qualify

the dispute as one concerning the interpretation or application of the treaty.

43. These propositions will now be briefly illustrated by reference to some of the

decided cases.

In the Mavrommatis Palestine Concessions case,39 the Permanent Court had

to consider Article 26 of the Mandate for Palestine which provided for any dispute

“relating to the interpretation or the application of the provisions of the Mandate” to be

submitted to the Permanent Court. The Court indicated that bearing in mind that its

jurisdiction was limited and based on consent, it needed to satisfy itself that “the suit

before it, in the form in which it has been submitted and on the basis of the facts hitherto

established, falls to be decided by application of the clauses of the Mandate”.40 The Court

proceeded to consider whether the dispute, which related to whether the government of

38 In fact a disagreement between two States as to an abstract issue of law is not of itself a dispute at

all: it has to relate to some concrete situation of concern to the States before it can be the subject of contentious proceedings. Cf. Case concerning Northern Cameroons ICJ Reports 1963 p. 15 at pp. 33-34.

39 (1924) PCIJ Series A. No.2. 40 Ibid., p.16.

19

Palestine had wrongfully refused to recognise to the full extent the rights of Mr

Mavrommatis under certain contracts in regard to certain public works, fell within the

terms of the Mandate. It concluded that certain concessions amounted to a system of

“public control” relating to the operation of public works within the meaning of Article 11

of the Mandate, which referred to the Administration of Palestine having full power to

provide for public ownership or control of any of the natural resources of the country or

of the public works, services and utilities established therein. By contrast, the Jaffa claims

were held to have “no connection” with Article 11 and fell outside the jurisdiction of the

Court.41 The Court analysed the issue by comparing the substance of the dispute with the

wording of the obligations in the relevant provisions of the Mandate. With the conclusion

that the dispute fell within certain provisions of the Mandate, the compromissory clause in

the Mandate gave the Court jurisdiction. This approach has been followed in later cases,

although the Court has usually not undertaken as extensive an analysis as it did in this very

first challenge to its jurisdiction.

In the Nicaragua case (Preliminary Objections),42 one of the jurisdictional

bases relied upon was a compromissory clause in a bilateral treaty providing for any

dispute “as to the interpretation or application” of the treaty to be submitted to the

International Court unless the Parties agreed to settlement by some other means. The

Court said that in order to establish jurisdiction Nicaragua must establish “a reasonable

connection”43 between the treaty and the claims submitted to the Court. One of the

arguments by the United States was that Nicaragua had never raised in the negotiations

the application or interpretation of the treaty to any of the factual or legal allegations in

41 Ibid., p.29. 42 ICJ Reports 1984, p.392. 43 Ibid., p. 427 (para. 81).

20

the application. This did not, however, concern the Court, which said:

“it does not necessarily follow that, because a State has not expressly referred in negotiations with another State to a particular treaty as having been violated by conduct of that other State, it is debarred from invoking a compromissory clause in that treaty.”44

The Court held that it had jurisdiction over claims presented by the application of

Nicaragua “in so far as they imply” violations of the provisions of the bilateral treaty.45

The Court did not find it necessary to analyse the claims in any detail at the jurisdictional

phase, but relied on the facts asserted.46

In the Genocide (Preliminary Objections) case,47 one of the preliminary objections

was that the claims made were based on allegations of State responsibility which fell

outside the scope of the Genocide Convention and its compromissory clause. The Court

rejected that objection.48 It sufficed that there was disagreement as to the application of

the Convention to the fact in issue, as well as to the meaning and legal scope of several of

those provisions, including Article IX (the compromissory clause). For the Court, there

was no doubt that there was a dispute between the Parties relating to the “interpretation,

application or fulfilment of the Convention”.49

47. A further and particularly useful example of the International Court’s approach

to such a compromissory clause is provided by the Oil Platforms case.50 The underlying

question in that case was the lawfulness of action by the United States in attacking and

destroying certain oil installations in the Gulf. At the time Iran had objected to the action

44 Ibid., p. 428 (para. 83). 45 Ibid., p. 441 (para. 111). 46 Judge Schwebel dissented on this issue on the basis that, on analysis, the claims presented did not

imply violations of the particular treaty (issues of security having been excluded by particular provisions in the treaty). In his view, the test was whether the treaty can “plausibly be interpreted” as giving jurisdiction: ibid., p. 637. If that is the test, it is clearly satisfied here.

47 ICJ Reports 1996 p.595. 48 Ibid., pp. 615-6 (para. 31). 49 Ibid., pp. 616-7 (para. 32). 50 Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary

Objections, ICJ Reports 1996 p. 803.

21

primarily on the ground that it was a breach of the United Nations Charter and a violation

of the United States’ obligation of neutrality in the Iraq-Iran War. But for jurisdictional

purposes, Iran relied on three articles of a bilateral Treaty of Amity of 1955. The

jurisdictional clause in the Treaty of Amity was in standard terms. It referred to “[a]ny

dispute between the High Contracting Parties as to the interpretation or application of the

present Treaty”. The Court formulated the jurisdictional question in the following way:

“… the Parties differ on the question whether the dispute between the two States with respect to the lawfulness of the actions carried out by the United States against the Iranian oil platforms is a dispute ‘as to the interpretation or application’ of the Treaty of 1955. In order to answer that question, the Court cannot limit itself to noting that one of the Parties maintains that such a dispute exists, and the other denies it. It must ascertain whether the violations of the Treaty of 1955 pleaded by Iran do or do not fall within the provisions of the Treaty and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain…”51

The sense of the crucial phrase “fall within the provisions of the Treaty” was given later,

when the Court was discussing the different articles relied on by Iran. Two it held to be

irrelevant, Article I because it imposed no independent obligation on the parties but was

merely preambular,52 Article IV (1) because it did not “lay down any norms applicable to

this particular case”.53 But Article X (1) was relevant, in the sense that it was capable of

providing a legal basis by which the conduct complained of could be assessed. As the

Court said:

“On the material now before the Court, it is indeed not able to determine if and to what extent the destruction of the Iranian oil platforms had an effect upon the export trade in Iranian oil; it notes nonetheless that their destruction was capable of having such an effect and, consequently, of having an adverse effect upon the freedom of commerce as guaranteed by Article X, paragraph 1, of the Treaty of 1955. It follows that its lawfulness can be evaluated in relation to that paragraph.”54

51 Ibid., p. 810 (para. 16). 52 Ibid., p. 815 (para. 31). 53 Ibid., p. 816 (para. 36). 54 Ibid., p. 820 (para. 51) (emphasis added).

22

Thus the Court upheld its jurisdiction, by 14 votes to 2, on the ground that the test for

whether a dispute involves the interpretation and application of a treaty is whether the

lawfulness of the respondent’s conduct “can be evaluated in relation to” provisions of the

treaty concerned.55

48. Indeed the Court has held that the question whether a treaty is applicable, as

against some other instrument or regime, is a question concerning its interpretation or

application, provided that the treaty crosses the threshold of potential applicability. In the

Case concerning Questions of Interpretation and Application of the 1971 Montreal

Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.

United Kingdom), the question was whether the dispute over Libya’s involvement in the

Lockerbie bombing was one “concerning the interpretation or application” of the Montreal

Convention. The United Kingdom denied that it was, relying on the reactions to the

bombing which had taken place principally under the auspices of the Security Council.

The Court said:

“24. The United Kingdom does not deny that, as such, the facts of the case could fall within the terms of the Montreal Convention. However, it emphasizes that, in the present case, from the time Libya invoked the Montreal Convention, the United Kingdom has claimed that it was not relevant as the question to be resolved had to do with ‘the reaction of the international community to the situation arising from Libya’s failure to respond effectively to the most serious accusations of State involvement in acts of terrorism’. 25. Consequently, the Parties differ on the question whether the destruction of the Pan Am aircraft over Lockerbie is governed by the Montreal Convention. A dispute thus exists between the Parties as to the legal régime applicable to this event. Such a dispute, in the view of the Court, concerns the interpretation and application of the Montreal Convention and, in

55 Vice-President Schwebel dissented, on the ground that the 1955 Treaty was not intended to cover a

deliberate use of force against a military target, and that in any event Article X (1) did not extend to production as distinct from transport and trade. Thus he disagreed on the scope of the Treaty rather than the Court’s view of the phrase “interpretation or application”. Indeed on the latter point he used rather similar phrases to the Court: see at pp. 874 (“fall within the terms of any provision of the Treaty”), 877 (“fall within its regulated reach”), 882 (“not as such excluded from the purview of the Treaty… within the reach of the Treaty”). Judge Oda also dissented: ibid., pp. 898-900.

23

accordance with Article 14, paragraph 1 of the Convention, falls to be decided by the Court.”56

49. In denying that the present dispute is covered by Part XV, Japan relies heavily

on the decision of the International Court in the Fisheries Jurisdiction case (Spain v

Canada).57 Japan submits that jurisdiction cannot exist here because “what has been

brought before this Tribunal as a dispute allegedly involving the application of UNCLOS is

in truth a dispute wholly about the implementation of the CCSBT”.58 The claim that the

present dispute relates wholly to the 1993 Convention will be discussed in further detail in

Chapter 3, and shown to be incorrect as a matter both of fact and of law. For present

purposes it is sufficient to note that the International Court’s decision in the Fisheries

Jurisdiction case raised quite different legal issues, which bear no relationship to the legal

question governing the Tribunal’s jurisdiction in the present case.

50. The Fisheries Jurisdiction case concerned the interpretation of an exclusion

clause in an Optional Clause declaration made by Canada. Shortly before the incident

which gave rise to that dispute, Canada had withdrawn its previous declaration and

deposited another which contained the following additional exception:

“(d) disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.”

56 ICJ Reports 1998 p. 9 at p. 17 (paras. 24-25). The Court made the same finding in the parallel

case brought against the United States: ICJ Reports 1998 p. 115 at p.123. In its Memorial on Jurisdiction, vol. 1, para. 112, Japan cites only the dissenting judgment of Sir Robert Jennings, who thought Libya’s reliance on the Montreal Convention was “an artifice”: ICJ Reports 1998 p. 9 at p.102. It does not explain why the Tribunal should prefer a dissenting opinion to a clear decision (or rather two clear decisions) of the Court. In any event, Sir Robert Jennings was concerned to avoid collateral challenges to Security Council decisions pursuant to compromissory clauses in bilateral treaties, a concern that points in the opposite direction here since it is UNCLOS which is the dominant instrument. Sir Robert had no difficulty in holding that the bilateral treaty was duly invoked in the Nicaragua case: above, para. 45. President Schwebel was also not persuaded, in the circumstances of Lockerbie, that the Montreal Convention was relevant, though he accepted that the passage quoted is “not without formal force”: ibid., p. 66.

57 Judgment of 4 December 1998, as yet unreported. 58 See Japan, Memorial on Jurisdiction, vol. 1, para. 8.

24

The only question for the Court was whether the dispute over the arrest of a Spanish ship

within the NAFO Regulatory Area fell within the scope of that exception. If it did, that

was the end of the matter. There was only a single possible basis of jurisdiction, Canada’s

Optional Clause Declaration, and that was subject to a deliberate exception which was

plainly intended to cover enforcement measures taken by Canada within a specified area of

the high seas. The seizure of the Spanish ship was in fact such a measure, and the Court

held it did not fall outside the scope of the Canadian reservation by reason of a dispute

about its characterization as lawful or unlawful. The case had nothing to do with a

mandatory dispute settlement clause in a multilateral treaty concerning matters arising

under that treaty or involving its interpretation.59 It had nothing to do with the

relationship between a general treaty providing for mandatory arbitration and an

implementation agreement with a different, purely facultative dispute settlement clause.

As will be seen, nothing in the 1993 Convention says or implies that disputes between the

parties to the 1993 Convention concerning conservation of SBT are excluded from Part

XV (even if it could have done so consistently with UNCLOS).60 A facultative dispute

settlement provision in an implementing treaty does not constitute an exclusion of

mandatory dispute settlement under a general multilateral convention to which the

implementing treaty refers, and there is no warrant whatever in reading Article 16 of the

1993 Convention as if it were an exception or exclusion from UNCLOS designed to

derogate from Part XV.

51. For these reasons (among others) the Fisheries Jurisdiction decision has

nothing to do with the present case. The jurisdictional question in the present case is

whether the dispute over conservation and management of SBT can be characterised as

one “concerning the interpretation or application of this Convention”. It relates not (as in

Fisheries Jurisdiction) to the origin or factual basis of the dispute, but to whether the

59 The Court emphasised the difference between the rules for the interpretation of treaties and of

unilateral declarations: judgment of 4 December 1998, para. 46. 60 See below, paras. 129-151.

25

dispute can be resolved by the interpretation or application of the legal standards

established for the parties by UNCLOS.61

52. It can be seen from this review that there is a jurisprudence constante

interpreting compromissory clauses in treaties in a broad and non-formalistic way. No

great ceremony is required in order that a jurisdiction be attracted by the compromissory

clause of a treaty. A legal dispute “involves”, “arises from” or “concerns” the

interpretation or application of a treaty if the lawfulness of the conduct in question can be

assessed by reference to the legal standards contained in the treaty.

53. This approach does not require a tribunal to reach a view on whether or not

the actions complained of are in breach of the treaty, and the Court clearly refrained from

doing so in the cases cited. It is sufficient that, under the provisions of the treaty which

have been invoked, the legality of the conduct in question can be evaluated, or, to put it in

other terms, that such conduct is “within the reach of” the treaty. That is certainly so in

this case, as will now be shown.62

(i) The present dispute concerns the interpretation or application of

UNCLOS

61 The poverty of case-law supporting Japan’s position here is such that it is constrained to rely on

dicta in the Advisory Opinion on the Administrative Tribunal of the ILO, ICJ Reports 1956 p. 89; 23 ILR 257. See Memorial on Jurisdiction, vol. 1, para. 113. In any event the Court there, citing the Ambatielos case, merely disqualified cases where there was “a remote connection between the facts of the claim and the Treaty”. Assuming (which Japan denies) that the relevant provisions of UNCLOS are in force between the present parties in relation to SBT, it cannot be argued that A/NZ’s claims have a merely “remote connection” to those provisions.

62 The present case is much stronger than the Oil Platforms case. There, the Iranian complaint under Article X (1) was an incidental or peripheral basis for evaluating the lawfulness of the United States conduct, and it was not distinctly invoked at any time. Iran’s primary ground of complaint (which it sought to raise through the medium of Article I of the 1955 Treaty) was a breach of the dominant instrument in the field of the use of force, the United Nations Charter. Here, the Applicants precisely complain of a breach of the dominant instrument on the law of the sea, UNCLOS, and they have consistently done so since 1998, as shown in paras. 61-71. Similar remarks could be made, e.g. about the relation between the present case and the Court’s ruling in Lockerbie: above, para. 48.

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54. As noted already, the essence of the A/NZ claim is that Japan has failed to

conserve and to cooperate in the conservation of the SBT stock, as manifested in

particular by its unilateral experimental fishing for SBT in 1998 and 1999. In so doing, it

has placed itself in breach of its obligations under international law, specifically those

contained in Articles 64, 116, 117, 118 and 119 of UNCLOS.63 Those provisions lay

down norms applicable to this particular case, by which the lawfulness of Japan’s action

can be evaluated.

55. Article 64 sets out the obligation of cooperation with respect to highly

migratory species like SBT. Article 64 (1) places an obligation on coastal States and other

States whose nationals fish in the region for highly migratory species to cooperate directly

or through appropriate international organizations with a view to ensuring conservation

and promoting optimum utilisation. In the circumstances, Article 64, read with other

relevant provisions of UNCLOS, imposes an obligation on Japan to cooperate with A/NZ

in achieving the conservation and sustainable management of SBT.

56. Similarly, Article 118 imposes an obligation on all States to cooperate in the

conservation and management of the living resources of the high seas, inter alia, through

the establishment of fishery organizations such as the Commission. In this case, where

such an organization has been established and is taking measures addressed at the

conservation of a severely depleted stock, Article 118 imposes an obligation on Japan to

cooperate with the organization and its members in the conservation and management of

SBT. The Commission established under the 1993 Convention provides the principal

means chosen by the Parties to achieve this result. However, Japan’s unilateral action, in

stepping outside the Commission and taking a substantial increase in catch, has rendered

the Commission effectively nugatory in respect of its primary function. Despite the

sentiments expressed (and even the obligations contained in or to be implied into) the 1993

Convention, it is a fact that a single State party can under that Convention by its own

action frustrate the working of that Convention, veto the adoption of a total allowable

63 For further analysis of these provisions, see below, paras. 109-128.

27

catch (“TAC”) and prevent any form of binding dispute settlement. In cases such as these,

the underlying obligations of cooperation in UNCLOS provide the mechanism by which

the lawfulness of unilateral conduct can be evaluated.

57. Article 117 relates to the conservation of marine living resources of the high

seas. It imposes an obligation on States to take and to cooperate with other States in

taking such measures for their nationals as may be necessary for the conservation of the

living resources of the high seas. It thus imposes an obligation on Japan to cooperate with

A/NZ in taking such measures, and lays down a standard by which the lawfulness of

Japan’s unilateral conduct can be determined.

58. Article 119 establishes an obligation on States to ensure that, in determining

the allowable catch, and establishing other conservation measures for living resources of

the high seas, they take measures designed, on best scientific evidence available, to

maintain or restore populations of harvested species at levels which can produce the

maximum sustainable yield, as qualified by relevant environmental and economic factors.

It follows from that obligation that States may not engage in additional fishing of a

seriously depleted stock, and in particular, may not do so unilaterally, in circumstances

where available scientific evidence suggests that doing so may well threaten the recovery

of the stock.

59. The applicability of these fundamental obligations to the present case is not

avoided by invoking the freedom to fish on the high seas.64 The freedom to fish on the

high seas is not an unfettered right to fish to the point of depletion of the stocks.65 The

International Court already rejected that view in its well known dictum in the Fisheries

64 Cf. however Japan, Memorial on Jurisdiction, vol. 1, paras. 165, 166. 65 Implicit in Japan’s approach to the present case (including its argument that the 1993 Convention

overrides UNCLOS) is the view that in fishing on the high seas it is exercising a sovereign right analogous to that of a coastal State over its EEZ: see e.g. Memorial on Jurisdiction, vol. 1, p. 80, note 117. That assumption itself shows why this is a dispute under UNCLOS.

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Jurisdiction cases in 1974,66 and it is on its face inconsistent with the language of Article

116. It is clear from Article 87 (1) (e) that the right to fish on the high seas is not

unlimited, and from Article 297 (3) (a) that issues of high seas fisheries are justiciable

under the Convention. A State Party is under a duty to observe the limitations established

by Article 116 in the conduct of its fishing on the high seas. In particular, Article 116

makes a State Party’s right to fish on the high seas subject to its treaty obligations, the

rights and duties as well as interests of coastal States, and, most importantly for present

purposes, the provisions of section 2 of Part VII, which deal with the conservation and

management of the living resources of the high seas. The term “treaty obligations” in

Article 116 is not subject to any express limitation. The Virginia Commentary notes that

it:

“includes [States’] obligations under the 1982 Convention. Those obligations may also exist through bilateral or multilateral treaties covering a particular geographical area or a particular species of fish, or by virtue of participation in subregional, regional or global organisations. Cooperation between States through the framework of international organisations is envisaged in articles 118 and 119, which also emphasise the need to conserve and manage fish stocks in the high seas.”67

Yet if Japan is right in its argument in the present case, the old laissez-faire conception of

the freedom to fish to the point of depletion of stocks, having been eliminated by the front

door of UNCLOS, comes in again through the back door of the lex specialis principle.

The effect of Japan’s argument is that it alone can decide whether or not there is to be a

TAC, it alone can decide how much it will fish, and it alone can decide what limits it will

accept on the above freedoms. This is the old anarchy returned in procedural guise.68

66 ICJ Reports 1974, p. 3 at p. 31 (para. 72): “It is one of the advances in maritime international law

... that the former laissez-faire treatment of the living resources of the sea in the high seas has been replaced by a recognition of a duty to have regard to the rights of other States and the needs of conservation for the benefit of all”.

67 Virginia Commentary, Part VIII, p. 286 (para. 116.9 (b)). 68 It should be noted, however, that Japan took a different and more responsible position in the Law of

the Sea negotiations. For example, the Japanese delegation in its statement at the fifth meeting of Sub-Committee II of the UN Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction, held on 27 July 1971, referred to suggestions that “the principle of the freedom of fishing — a recognised principle of maritime law — … militated against effective conservation of fishery resources”. In its view, this criticism…

29

60. For all these reasons, the present case concerns conduct which relates directly

to norms which are central to the new law of the sea set out in UNCLOS. To borrow,

mutatis mutandis, the words of the International Court in the Genocide case:

“…the Parties not only differ with respect to the facts of the case… and the applicability to them of the provisions of the [Law of the Sea] Convention, but moreover are in disagreement with respect to the meaning and legal scope of several of those provisions.”69

(c) A/NZ invoked UNCLOS in the course of the dispute

61. The diplomatic correspondence reflects the history of the present dispute.70 It

can be seen from that correspondence that ANZ have invoked relevant provisions of

UNCLOS throughout. To the extent that such invocation may be required for a dispute to

concern the interpretation or application of a treaty,71 that requirement is met here, as the

following recital will show.

“derived from a certain misunderstanding of the concept of the freedom of fishing, which did not accord unrestricted rights to fish the high seas. Such freedom might have been possible in the past when the resources of the sea could to all intents and purposes be regarded as inexhaustible; but, with the development of modern fishing techniques, it had come to be widely recognised that fishing activities must be regulated in order to avoid over-exploitation of resources and ensure their effective utilization. To that end, an extensive system of international co-operation had developed in the form of multilateral and regional conservation arrangements. When a stock of fish was in danger of depletion, no State could disregard the general obligation to cooperate with other States in keeping fishing activities down to an appropriate level. Provided that that general obligation was accepted, however, no State could be excluded from fishing in any part of the high seas.”

(A/AC.138/SC.II/SR.5 at pp. 4-5.) 69 ICJ Reports 1996 p. 595 at p. 616 (para. 33). 70 See Annexes 1-35. 71 In fact the decisions of the International Court discussed above, paras. 44-53, place very little

emphasis on the actual invocation of a treaty provision at the time of a breach. Rather they emphasise the legal relevance of the treaty in evaluating the conduct complained of. The reason is that State responsibility is not dependent on the subjective intention either of the wrongdoing State in “intending” to breach a particular article, or the victim State(s) in “intending” to invoke it. It is an objective matter, i.e. one defined by international law, and specifically by the extent of the international obligations of the parties at the relevant time. Provided there is a dispute about the legality of a State’s conduct (as there plainly is here), it is open to a competent tribunal to assess its

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62. New Zealand protested against the commencement of Japan’s first unilateral

experimental fishing programme by diplomatic note on 14 July 1998.72 That note set out

the view of the Government of New Zealand that the Japanese Government had “failed to

act consistently with its responsibilities under international law to cooperate in the

conservation and management of SBT and to conserve marine living resources”. The

foundation for those responsibilities is UNCLOS.

63. A/NZ formally advised Japan of the existence of a legal dispute on 31 August

1998, by separate but equivalent diplomatic notes.73 Those notes both cited the view that

Japan had placed itself in breach of its obligations under international law. In defining

those obligations, A/NZ cited (a) the 1993 Convention; (b) UNCLOS; and (c) customary

international law, including the precautionary principle. Specific reference was made to

the obligations under UNCLOS engaged by the dispute, including the conservation of

highly migratory species, the duty to have regard to the interests of coastal States, and the

duties to cooperate in, and take such measures as may be necessary for, the conservation

of living resources of the high seas. The parallel Notes requested that urgent

consultations, followed by negotiations, be convened in order to resolve the dispute.

64. It is true that Japan’s response to that notification took pains to exclude the

consideration of UNCLOS principles in relation to the dispute. Japan’s Note Verbale to

Australia of 9 September 1998 presented the view that “the United Nations Convention on

the Law of the Sea of 10th December 1982, and other related conventions or treaties

referred by the Australian Government in its Note, do not have any direct bearing in terms

of the consultation under Article 16.2 of the Convention”.74 Japan advised that, before

agreeing to consultations, it wished to know specifically what actions were in breach of

specific Articles of the 1993 Convention.

legality on any available ground. See e.g. the Lockerbie case (Preliminary Objections) ICJ Reports 1998 p. 9 at pp. 22-23 (paras. 31, 33).

72 Annex 1. 73 Annexes 2 and 3, respectively.

31

65. A/NZ clearly did not accept Japan’s attempt to quarantine UNCLOS, and

reasserted the relevance of UNCLOS in their replies. Australia’s diplomatic Note of 11

September 1998 stated:

“the Government of Australia is firmly of the view that it is not possible nor was it ever contemplated, that matters concerning the 1993 Convention should be isolated from related international obligations concerning the conservation and utilisation of the living resources of the sea. Indeed, the close connections between the 1993 Convention and other international rights and obligations, including those under the 1982 United Nations Convention on the Law of the Sea (‘the 1982 Convention’) is recognised in the preamble to the 1993 Convention.”75

66. That position was echoed by New Zealand in its Aide Memoire of 1 October

1998 which confirmed that “New Zealand’s position on the existence of a dispute is

essentially that taken by Australia.”76

67. A/NZ again invoked UNCLOS in the summary of their legal concerns which

was presented to Japan following the consultations held under Article 16 (1) of the 1993

Convention in Canberra on 9 November 1998.77 A/NZ expressly noted that their joint

statement was a response to Japan’s request for clarification of the main grounds of the

dispute, and did not preclude their right to rely on other grounds as may be appropriate.

The joint statement was emphatic in identifying that Japan had failed to act consistently

with its responsibilities under international law to cooperate in the conservation and

management of SBT and to conserve marine living resources in conducting unilateral

experimental fishing for SBT.

74 Annex 4. 75 Annex 7. 76 Annex 10. 77 Annex 11.

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68. The A/NZ joint statement further noted that, in particular, Japan’s actions

were in breach of its obligations under the 1993 Convention, UNCLOS and principles of

international law. With respect to the obligations under UNCLOS, the paper noted:

“The unilateral experimental fishing programme is also inconsistent with Japan’s obligations under the United Nations Convention on the Law of the Sea 1982 and customary international law. In particular, the unilateral experimental fishing programme is inconsistent with the: obligation to cooperate in the conservation and management of marine living resources, and in particular highly migratory species, including those under Articles 64, 117, 118 and 300;

33

duty under article 116 for States fishing on the high seas to act in accordance with their treaty obligations and to have regard to the interests of coastal States, such as Australia and New Zealand; and precautionary principle.”

69. Negotiations were held in Tokyo, Japan from 20 to 23 December 1998. Both

Australia and New Zealand made statements on their legal position in the course of the

negotiations. The relevant passage from the Australian legal statement provides:

“I will now move to the 1982 United Nations Convention on the Law of the Sea and customary international law. Australia believes that the conduct of the unilateral EFP by Japan has placed Japan in breach of its obligations under the 1982 Convention and the precautionary principle. These include the obligation to cooperate in the conservation and management of marine living resources, and in particular highly migratory species under Article 64, 117, 118 and 300. They also include the duty under Article 116 of the 1982 Convention for States fishing on the high seas to act in accordance with their treaty obligations and to have regard to the interests of coastal states, such as Australia. In Australia’s view, there is no question that these obligations and principles are directly relevant to this dispute. Australia is firmly of the view that it is not possible to isolate matters concerning the 1993 Convention from related international obligations concerning the conservation and utilisation of the living resources of the sea. Indeed, the close connection between the 1993 Convention and other international rights and obligations, including those under the 1982 Convention, is expressly recognised in the preamble to the 1993 Convention.”78

70. At the same meeting, New Zealand said:

“The unilateral experimental fishing programme is also inconsistent with Japan’s obligations under the UN Convention on the Law of the Sea and customary international law and in respect of the UN Fish Stocks Agreement. As recognised in the Preamble, these obligations are directly relevant to the way in which parties must interpret and implement the 1993 Convention. In particular, the unilateral experimental fishing programme is inconsistent with:

78 Statement of Australia’s Legal Position. Attachment C, Record of Discussions: Annex 37.

34

• Japan’s obligation to cooperate in the conservation and management of marine living resources, and in particular highly migratory species, including those under Articles 64, 117, 118 and 300 of the UN Convention on the Law of the Sea; and

• Japan’s duty under Article 116 of the UN Convention on the Law of the

Sea as a State fishing on the high seas to act in accordance with its treaty obligations and to have regard to the interests of coastal States such as Australia and New Zealand; and

• the precautionary principle.”79

71. Consistent with the position previously advanced, these exchanges explicitly

indicate that Japan’s conduct of unilateral experimental fishing, in the opinion of A/NZ,

involved a breach of fundamental aspects of UNCLOS and related norms of customary

international law. This is the case, even though the negotiations which were held in

December 1998 were explicitly held pursuant to Article 16 (1) of the 1993 Convention.

A/NZ hoped to resolve the dispute by those negotiations: had they done so, this arbitration

need never have been commenced. But A/NZ had already, on numerous occasions,

characterized the dispute itself as one involving all relevant obligations under international

law, including UNCLOS. They never deviated from that position.80

(3) The dispute has been submitted to this Tribunal

in accordance with Part XV

72. The second condition for the jurisdiction of this Tribunal is that the dispute

should have been submitted to it in accordance with Part XV. This involves the following

79 Statement of New Zealand’s Legal Position, Attachment C, Record of Discussions: Annex 37. 80 For the subsequent termination of the negotiations under Article 16 (1), see below, paras. 79-81

and 87-88.

35

four questions:

(a) Have the parties sought to settle the dispute by peaceful means (Article 279)? The

answer is, clearly, yes.

(b) Has a settlement been reached by such means (Article 281)? The answer is, equally

clearly, no; moreover, there is no agreement between the parties excluding a further

procedure.

(c) Have the parties agreed through a general, regional or bilateral agreement or

otherwise to submit the dispute to a procedure that entails a binding decision

(Article 282)? The answer is that (apart from Part XV itself) they have not so

agreed.

(d) Have the parties exchanged views on their legal positions (Article 283)? The answer

is, again, clearly yes.

(a) The attempt to settle the dispute by peaceful means

73. Section 1 of Part XV imposes a general obligation on States Parties to settle

disputes by peaceful means before seeking to invoke the compulsory binding dispute

settlement procedures of Section 2. The account given in this Chapter above shows

clearly that the parties have attempted at length to resolve the dispute by consultations and

negotiations. To the extent that Article 279 imposes a distinct obligation of attempting to

resolve disputes by peaceful means, it has plainly been satisfied here.

(b) The parties have failed to achieve a settlement

74. Article 281 of UNCLOS provides as follows:

Procedure where no settlement has been reached by the parties

1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties

36

does not exclude any further procedure. 2. If the parties have also agreed on a time-limit, paragraph 1 applies only upon the expiration of that time-limit.

In the present case no settlement has been reached, despite extensive attempts, and there is

no agreement between the parties which excludes any further procedure.

75. On 31 August 1998, when A/NZ formally notified Japan of the existence of a

dispute between them over its conduct of unilateral experimental fishing, they called for

consultations under Article 16 (1) of the 1993 Convention.81 Those consultations and

subsequent negotiations failed to resolve the dispute. However, without prejudice to the

legal position of the parties, the delegations agreed that they would seek to develop a

future experimental fishing programme, to be adopted by consensus, which took account

of the Objectives and Principles for the Design and Implementation of an Experimental

Fishing Program adopted by the Commission in 1996.82 It has been shown that in so

agreeing, A/NZ in no way abandoned their legal position as to the character of the dispute.

But they hoped that an agreement might be reached by the negotiations with a view to

removing the threat of unilateral action by Japan.

76. The December 1998 negotiations failed to resolve the dispute. Nevertheless,

to move matters forward, and without prejudice to their respective legal positions in

relation to the dispute, the three countries agreed to establish a working group (the

“EFPWG”) to develop a possible future joint program of experimental fishing, one which

would conform with the 1996 Objectives and Principles and would be adopted only by

consensus.

81 Annexes 2 and 3, respectively. 82 Dossier, vol. 1, Nos. 3.2, 4.3.

37

77. From February to May 1999, the EFPWG formally met four times, without

reaching agreement on a future joint program. A brief account of the discussions that

took place is contained in the Appendix.83

78. Following the termination of the EFPWG process, the parties participated in a

series of meetings during April and May 1999, culminating in a bilateral meeting of

Australian and Japanese officials in Canberra, Australia on 26-27 May 1999. At that

meeting, Japan delivered to Australia what can only be described as an ultimatum.

Australia was advised that, unless it accepted Japan’s proposal for a 1999 joint EFP, Japan

would recommence unilateral experimental fishing on 1 June 1999 on its own terms.84

The same demands were conveyed to New Zealand on 28 May 1999. Australia and New

Zealand each separately informed Japan that its proposal was unacceptable.

79. On 31 May 1999 Australia formally requested Japan not to recommence

unilateral experimental fishing on 1 June 1999 or at any time thereafter and warned that

any such recommencement would be contrary to Japan’s obligations under international

law and would expand the scope of the ongoing dispute.85 Australia also informed Japan

that, if it did recommence unilateral experimental fishing on 1 June 1999 or at any time

thereafter, Australia would regard such action as a unilateral termination by Japan of the

negotiations amongst the Parties. New Zealand conveyed the same message to Japan by

way of a formal Aide Memoire delivered to the Ambassador of Japan on 28 May 1999.86

80. On 1 June 1999 Japan advised Australia that it had decided to commence

unilateral experimental fishing that very day, advising New Zealand similarly on 4 June.87

Japan went on to propose a continuation of discussions and expressed its willingness to

adjust its experimental fishing catch later when consensus was reached, an untenable

83 See especially paras. A30-A34. 84 Japan added that, if its ultimatum was not accepted, it would take 10% more fish. See Appendix,

para. A35. 85 Annex 13. 86 Annex 12. 87 Annexes 14 and 15, respectively.

38

proposition given that Australia would have been forced to capitulate to the very conduct

at the core of the dispute while negotiations continued.88

81. In reply, and consistently with their earlier positions, A/NZ informed Japan

that its action had terminated the negotiations. Both countries also advised Japan that

they were examining other options open to them under international law for resolving the

dispute.89 Japan replied shortly after,90 stating that it had no intention of terminating the

negotiations. Instead it sought to continue consultations to have the dispute resolved in

accordance with Article 16 (1) of the 1993 Convention.

82. In response, Australia restated the view expressed in previous exchanges,

written and oral, that the dispute concerned Japan’s obligations under UNCLOS and

customary international law rather than those solely under the 1993 Convention. In these

circumstances, it considered there had been a full exchange of views on the dispute for the

purposes of UNCLOS. Australia went on to inform Japan that, given the legal issues

involved and Japan’s precipitate action in recommencing unilateral experimental fishing, it

required a form of dispute settlement which resolved all of the legal issues quickly and

definitively, the most appropriate means of resolving the dispute being to commence

compulsory dispute settlement procedures entailing binding decisions under UNCLOS.91

New Zealand likewise formally advised Japan that it required a form of dispute settlement

which resolved all of the legal issues definitively and that the most appropriate course of

action for it to take would be to commence proceedings under UNCLOS.92

83. In its Notes of 23 and 24 June 1999, Japan stated that it was ready to have the

dispute resolved by mediation under the provisions of the 1993 Convention.93 However, it

did not specify any preparedness to suspend unilateral experimental fishing during the

88 Ibid. 89 Annexes 16 and 17, respectively. 90 Annexes 18 and 19. 91 Annex 23. 92 Annex 25. 93 Annexes 22 and 24.

39

mediation. A/NZ’s response was to inform Japan that, without prejudice to their

frequently stated legal position, they were ready as a matter of urgency to resume attempts

to resolve the dispute by amicable processes which stopped short of the compulsory

dispute settlement procedures entailing binding decisions under UNCLOS.94 Accordingly,

they were willing to submit the dispute urgently to mediation as suggested by Japan,

provided that:

(a) Japan agreed to cease its unilateral experimental fishing; and

(b) the mediation was conducted on a reasonably expeditious timetable.

A/NZ proposed that Japan cease its unilateral fishing by 5 July 1999 and that the

mediation be completed by 31 August 1999.

84. Japan rejected mediation under these reasonable conditions.95 In so doing, it

steadfastly refused either to suspend its unilateral experimental fishing or to agree to a

deadline for mediation.96

85. Some days later, Japan put forward a belated proposal for arbitration under

Article 16 (2) of the 1993 Convention,97 and for a mechanism for concurrent consultations

on a joint experimental fishing program. Again, there was no undertaking to suspend

experimental fishing, and no specific proposal for the procedure or powers of the

proposed arbitration.98 Faced with the prospect of an arbitration under these conditions

— conditions designed to effectively deprive an arbitration from confronting the very issue

at the heart of the dispute — A/NZ had no option but to seek a definitive resolution of the

dispute by commencing proceedings under UNCLOS, as they had said they would do.

94 Annexes 26 and 27. 95 Annexes 30 and 31. 96 Annexes 28 and 29. 97 Annexes 32 and 33. 98 The Annex for an Arbitral Tribunal appended to the 1993 Convention does not incorporate any

institutional arbitral rules and makes no provision for provisional measures.

40

86. A/NZ accordingly notified Japan that they had decided to commence

compulsory dispute resolution proceedings under Part XV of UNCLOS.99 In so doing,

A/NZ informed Japan that they did not accept its proposals for arbitration or mediation

and that they regarded those proposals as a rejection by Japan of their conditional

acceptance of mediation. Pending the constitution of the arbitral tribunal under Annex VII

to UNCLOS, A/NZ requested provisional measures under Article 290 (5) of UNCLOS,

including the immediate cessation of unilateral experimental fishing by Japan.100 The

outcome of that application has already been described.101

87. To summarize, despite extensive efforts no settlement could be reached. Nor

could any agreement be reached on a further procedure under Article 16 (1) such as

mediation. A/NZ at all times reserved their legal positions in the event of the failure of the

negotiations, and at no time did they agree not to resort to any further procedure open to

them. In the event, the nature and manner of the ultimatum delivered by Japan at the end

of May 1999,102 its insistence on recommencing unilateral fishing on its own terms and its

steadfast refusal to suspend its programme to enable further efforts to resolve the dispute,

made it clear to the Applicants that no settlement was able to be reached through the

procedures of Article 16. Both governments formally requested Japan not to proceed and

advised that if it did so, its actions would amount to termination of the 1993 Convention

Article 16 dispute resolution process.103 When Japan informed A/NZ on 1 June 1999 of

its decision to proceed,104 both governments responded that the proposed action was

unacceptable and in breach of international law, and that the Article 16 process was

accordingly terminated.105

88. It is true that Japan did not accept that there had been a termination of these

negotiations. But it is not open to a party whose unilateral action is the subject of a

99 Annexes 34 and 35. 100 Ibid. 101 See above, paras. 5-19. 102 Dossier, vol. 3, No. 21 at p. 22; vol. 3, No. 23 at pp. 9 and 22. 103 Annexes 12 and 13. 104 Annexes 14 and 15.

41

dispute to avoid recourse to compulsory dispute settlement procedures by offering further

negotiations which hold no prospect of success. As ITLOS concluded on this point:

“…a State Party is not obliged to pursue procedures under Part XV, section 1, of the Convention when it concludes that the possibilities of settlement have been exhausted…”106

89. Accordingly, Article 281 had no application to the present dispute at the time

when the proceedings were started by the two Statements of Claim.

(c) There is no agreement to submit the dispute to a procedure that entails a

binding decision

90. Article 282 of UNCLOS provides:

Obligations under general, regional or bilateral agreements

If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.

91. Article 282 excludes the provisions of Part XV where the parties to a dispute

concerning the interpretation or application of UNCLOS “have agreed… that such dispute

shall… be submitted to a procedure that entails a binding decision”. It is clear that Article

16 of the 1993 Convention does not amount to such an agreement. Even if it is a

procedure (rather than a menu of procedures),107 Article 16 leaves everything for

subsequent agreement by the parties. It certainly does not “entail a binding decision”.

Nor was there any subsequent agreement between the parties to any such procedure, as

105 Annexes 16 and 17. 106 ITLOS Order, para. 60; above, para. 10. 107 In truth, Article 16 bears to a dispute settlement procedure exactly the same relation as a menu

does to a meal.

42

has been shown. Article 282 clearly did not preclude A/NZ from recourse to Part XV

procedures in the present case.

(d) There was an exchange of views between the parties

92. Article 283 (1) provides that when a dispute arises which concerns the

interpretation or application of UNCLOS, the parties must “proceed expeditiously to an

exchange of views”. This obligation applies also, under Article 283 (2) where a procedure

for the settlement of such a dispute has been terminated without a settlement. There can

of course be no doubt that there was an exchange of views between the parties, from mid-

1998 onwards, as to the dispute and their respective legal positions. This has been dealt

with already. After 1 June 1999, when the negotiations had broken down because of

Japan’s insistence in proceeding with its unilateral EFP, the parties continued to exchange

views, which were by this stage well developed and well-known to each other. By their

communications, formal and informal, from 1 June to the delivery of the Statements of

Claim and Requests for Provisional Measures on 15 July 1999,108 A/NZ made it clear that

their views were unchanged, as did Japan. Thus there was a thorough exchange of views

in terms of both paragraphs of Article 283. The substantive positions of all sides were

fully explained, but no resolution could be achieved. In a case where no settlement has

been reached by negotiation or other peaceful means in accordance with Section 1, Article

286 permits any party to the dispute to invoke the compulsory procedures set out in

Section 2.

(4) Conclusion

93. From this recital of the facts, and from the authorities cited, it is clear:

(a) that there is a legal dispute between the parties as to the conservation and

management of SBT;

108 Annexes 16, 17, 20, 23, 25, 26, 27, 34 and 35.

43

(b) that the provisions of UNCLOS dealing with conservation and management

of high seas resources, especially highly migratory species, are implicated in

that dispute, in the sense that the lawfulness of Japan’s conduct “can be

evaluated in relation to” or “are within the reach of” these provisions;

(c) that these provisions were actually invoked by A/NZ in diplomatic

correspondence and other discussion during the course of the dispute, and

(d) that the formal requirements of Part XV, Section 1, have all been clearly

met: there was a lengthy attempt to settle the dispute by peaceful means, a

full and continuing exchange of views, no agreement excluding a further

procedure and no agreement to any other procedure entailing a binding

decision.

It follows from conclusions (a) and (b), and a fortiori from those conclusions associated

with conclusion (c), that the present dispute concerns the interpretation and application of

the provisions of UNCLOS with regard to fisheries. It follows from conclusion (d) that

the present proceedings were duly commenced under Section 2 of Part XV.

94. As a jurisdictional matter, that is really the end of the story. Any remaining

issues of the relationship between UNCLOS obligations and the provisions of the 1993

Convention will be a matter for the Tribunal to deal with in the context of the merits.

However, and subject to the caveat already made,109 A/NZ will respond to the extensive

Japanese argument concerning the 1993 Convention and its relation to UNCLOS

obligations. This is the subject of the following Chapter.

109 Above, para. 23.

44

CHAPTER 3. THE TRIBUNAL’S JURISDICTION UNDER PART XV

IS NOT EXCLUDED BY THE 1993 CONVENTION

95. Japan's principal arguments in its Memorial on Jurisdiction concern the

exclusive or preclusive effect of the 1993 Convention. The argument is put in different

ways but always to the same effect, viz., that the dispute exclusively concerns or is

exclusively covered by the 1993 Convention, and accordingly that a tribunal under Part

XV of UNCLOS has no role.

96. It bears re-emphasising that, for the reasons already given, this argument itself,

in the context of the present dispute, is one concerning the interpretation or application of

UNCLOS. Japan interprets the fisheries provisions of UNCLOS out of existence and

denies that they have any application; A/NZ strongly disagree. The position is accordingly

covered by the long line of cases, analyzed in the preceding Chapter, in which the

International Court and other tribunals applied a broad view of the term "dispute

concerning the interpretation and application of" the treaty in question.110 To paraphrase

the judgment of the Court in the Lockerbie case (Preliminary Objections), the present

case is one in which:

"...the Parties differ on the question whether the [Japanese EFP and associated conduct] is governed by [UNCLOS]. A dispute thus exists between the Parties as to the legal régime applicable to [Japan's conduct]... Such a dispute... concerns the interpretation and application of [UNCLOS] and, in accordance with [Article 288, paragraph 1 of UNCLOS], falls to be decided by the [Tribunal]."111

97. However, in order to be fully responsive to Japan's arguments, this Chapter

will deal with them in turn. First, it will consider how the parties in fact characterised the

present dispute, and whether they agreed that it was solely a dispute under the 1993

Convention. Secondly, it will discuss miscellaneous legal arguments made by Japan

purporting to show that, whatever the intention of the parties may have been, the effect of

the 1993 Convention was to exclude UNCLOS obligations, and in particular Part XV.

110 See above, paras. 44-53. 111 ICJ Reports 1998 p. 9 at p. 17 (para. 25); above, para. 48.

45

(1) The Characterisation of the dispute

(a) Japan's argument for exclusive characterisation of the dispute under the

1993 Convention

98. Japan argues that the parties, including A/NZ, have always treated the dispute

as one arising solely and exclusively under the 1993 Convention, and that A/NZ are

precluded from treating it in any different way now.112 Quite apart from the question

whether one party to UNCLOS could be precluded from relying on its rights under that

instrument vis-à-vis another, this argument simply fails on the facts. It is true that Japan

has always sought so to characterise the dispute, no doubt because it could thereby argue

that in the absence of a TAC set annually by consensus of the parties under Article 8 of the

1993 Convention, it was free to engage in high seas fishing for SBT at its discretion. But,

as has already been demonstrated,113 throughout the dispute A/NZ invoked the obligations

of the parties under UNCLOS and under customary international law as core elements

which must be addressed if the dispute is to be resolved. It follows that A/NZ have never

treated this dispute as one simply concerning aspects of the 1993 Convention. This

position is reflected in the various diplomatic exchanges that have taken place in

connection with the dispute.

(b) The characterisation of the dispute in the diplomatic exchanges

99. Prior to formally notifying Japan of the existence of a dispute, there had been

numerous exchanges between the parties on the issue of experimental fishing. Japan has

suggested that the parties' obligations under UNCLOS and customary international law

were not referred to in those early exchanges.114 But at that time A/NZ hoped that the

differences between the parties could be resolved amicably through the operation of the

Commission. They were striving for cooperation not litigation. Hence, the various

statements made by the Applicants were designed to highlight expectations that Japan

would respect those processes which, by its actions and threats of action, it had been

subverting. It was not, as Japan seeks to argue, on account of UNCLOS being considered 112 See Japan, Memorial on Jurisdiction, vol. 1, paras. 101-104. 113 Above, paras. 61-71. 114 Japan, Memorial on Jurisdiction, vol. 1, para. 68. This is not in fact true: see e.g. the New Zealand

note of 14 July 1998, referred to in para. 62, which referred generally to international law obligations.

46

in any way extraneous or irrelevant.

100. A/NZ have always taken the view that UNCLOS provides the framework for

the conservation and management of SBT by the parties, whether it be through the

medium of an international commission such as that established by the 1993 Convention

that those objectives are pursued, or by some other means. This expectation is explicitly

reflected in the preamble of the 1993 Convention, and has been implicit in much of the

work of the Commission. That it may not have been explicitly stated in early exchanges

between the parties has no bearing upon the jurisdiction of this Tribunal.

101. From mid-1998 onwards, A/NZ were consistent in explaining their legal

position as one involving both the underlying and primary obligations of UNCLOS as well

as those under the 1993 Convention. They also invoked ancillary principles of general

international law such as the precautionary principle or approach.

102. The various notes, meetings and other communications have already been

recited and will not be repeated here.115 Relevant features for present purposes include the

following:

• the aim of A/NZ was to resolve the dispute and restore the effective management of

SBT;

• the existence of the dispute and its basis was made clear to Japan at an early stage;

• the legal grounds for the dispute, including the relevant UNCLOS obligations, were

specified by A/NZ;

• Japan's requests for clarification of the grounds of the dispute were responded to

promptly by A/NZ;

• Japan's assertions that the UNCLOS obligations were irrelevant to the dispute were

firmly rejected by A/NZ; and

• the relevance of the UNCLOS obligations were recorded by A/NZ at all stages of

the dispute, i.e. at the time they formally notified Japan of the dispute, during the

process pursued under Article 16 (1) of the 1993 Convention and at the

commencement of the present proceedings.

103. This recital shows that there were extensive exchanges between the parties,

that these served to define the scope of the dispute with some precision, and that it has

115 See above, paras. 61-71.

47

never been characterised by Australia or New Zealand as a dispute exclusively under the

1993 Convention.

(2) The relation between UNCLOS and the 1993 Convention: Japan's legal

arguments for excluding its UNCLOS obligations

104. Alternatively, Japan argues that, however the parties may themselves have

treated the matter at the time, the 1993 Convention effectively excludes UNCLOS

obligations from operating or having any legal effect in terms of the dispute. In its view,

the 1993 Convention "covers" all the obligations of the parties under UNCLOS and

supersedes them, either because it is a lex posterior116 or alternatively a lex specialis which

prevails over the lex generalis, UNCLOS.117 The point has already been made that these

legal claims of Japan concern the interpretation or application of UNCLOS and therefore

pertain to the merits.118 But in any event, it will be shown here that:

(a) the 1993 Convention does not "cover" the relevant obligations of the parties under

UNCLOS;

(b) the 1993 Convention was not intended to, and in fact makes no attempt to, derogate

from UNCLOS and in particular from Part XV;

(c) had it done so, its legal effectiveness would be doubtful; and

(d) Japan's reliance on the lex posterior and lex specialis principles are misplaced, since

UNCLOS itself regulates its relationship with implementation conventions such as

the 1993 Convention.

In consequence, the Tribunal's jurisdiction over the present dispute under Part XV stands

unaffected.

105. Before turning to these arguments an important preliminary point should be

made. There is no necessary inconsistency between two compromissory clauses in

different treaties, whatever their terms may be. It is a common phenomenon for a

particular dispute to be covered by several bases for jurisdiction, for example under the

Optional Clause, under a bilateral treaty and under a multilateral treaty, each of them

providing for a different dispute settlement body. An issue of freedom of navigation might

116 Japan, Memorial on Jurisdiction, vol. 1, paras. 127-128. 117 Japan, Memorial on Jurisdiction, vol. 1, para. 116. 118 See above, paras. 23 and 94.

48

be covered by the compromissory clause in a bilateral treaty of friendship commerce and

navigation and by UNCLOS; an issue of discrimination in trade might be covered by a

bilateral trade treaty and by the GATT; an issue of diplomatic immunity might be covered

by a bilateral treaty dealing with diplomatic relations and by the 1961 Vienna Convention

on Diplomatic Relations. No one has ever suggested that there is any a priori

inconsistency between overlapping compromissory clauses under different treaties, or that

one such clause is lex specialis to the other. Unless otherwise specified, either clause may

be invoked by a party to a dispute, in its own terms and in relation to its own treaty.119

106. The presumption of the parallelism of jurisdictional clauses is of long standing.

It was formulated, for example, by the Permanent Court in the Electricity Company of

Sofia and Bulgaria (Preliminary Objections), in the following terms:

"...the multiplicity of agreements concluded accepting the compulsory jurisdiction is evidence that the contracting Parties intended to open up new ways of access to the Court rather than to close old ways or allow them to cancel each other out with the ultimate result that no jurisdiction would remain."120

This principle applies a fortiori when the contrast is between a provision for "compulsory

procedures entailing binding decisions" and one for optional procedures. To say the least,

the latter is presumed not to derogate from the former.

107. Since there is no a priori inconsistency between Part XV of UNCLOS and

Article 16 of the 1993 Convention, Japan can only be arguing that its UNCLOS

obligations are displaced and excluded by the 1993 Convention so far as a Part XV

Tribunal is concerned.121 In other words, Japan must either be arguing that the conclusion

and entry into force of the 1993 Convention put an end to its substantive UNCLOS

obligations as regards conservation and management of SBT, or that the dispute

settlement provisions of the 1993 Convention somehow prevail over those under Part XV,

whatever Part XV may say. It is a sufficient answer (though by no means the only one) to

119 It is because of this parallelism of jurisdictional clauses that many declarations under the Optional

Clause (including those of the three parties to this case) exclude disputes which the parties have agreed shall be submitted to some other form of peaceful settlement.

120 (1939) PCIJ, Ser. A/B, No.77, p. 64 at p. 76. 121 Japan never attempts to resolve the contradiction that Article 293 presents for its theory. Under

UNCLOS this Tribunal's jurisdiction to apply the 1993 Convention is conditional upon its being "not incompatible" with UNCLOS. Japan argues that this Tribunal cannot apply UNCLOS because it is incompatible with the 1993 Convention. That argument is inadmissible under Part XV.

49

say that there is no indication whatever in the 1993 Convention, or the available travaux,

of any intention to achieve either of these ends.

108. It is not sufficient for Japan's purposes for it to argue that its involvement in

the 1993 Convention constitutes a performance or a fulfilment of its UNCLOS

obligations. Whether it has duly performed these obligations is evidently a matter for the

merits. Japan needs to show that the mere existence of the 1993 Convention, irrespective

of whether or to what extent it is implemented or its purpose is achieved, is sufficient to

exclude a tribunal under Part XV of UNCLOS from exercising any jurisdiction over a

dispute concerning the conservation and management of a highly migratory species. It will

be seen from what follows that this argument is untenable.

(a) The 1993 Convention does not "cover" UNCLOS conservation

obligations

109. Japan's Memorial on Jurisdiction compares UNCLOS and the 1993

Convention, seeking to show that the obligations contained in Articles 64 and 116-119 of

UNCLOS are "covered" by the terms of the 1993 Convention. In its view, a "close

comparison" of the provisions of UNCLOS and the 1993 Convention demonstrates that: "...there is no aspect of the cited articles of UNCLOS that is not covered by the terms of CCSBT."122

But in fact Japan provides no such "close comparison", perhaps because even a brief

comparison demonstrates that UNCLOS contains much more by way of explicit and

detailed obligations on the substance of the conservation and management of SBT than

does the 1993 Convention.

(i) Article 64

110. For present purposes, Article 64 (1) imposes an obligation on Japan, as a

distant-water fishing State, and Australia and New Zealand, as coastal States, to cooperate

"with a view to ensuring conservation and promoting the objective of optimum utilization"

of SBT. This duty to cooperate is not an abstract concept. It is imposed upon States

122 Japan, Memorial on Jurisdiction, vol. 1, para. 36 (asserting that relevant UNCLOS articles are

"covered" by the 1993 Convention generally or by particular articles of the 1993 Convention).

50

Parties to UNCLOS with the purpose of "ensuring conservation and promoting the

objective of optimum utilization" of highly migratory species. The cooperation between

States Parties has a clear objective.

111. Article 64 (1) requires States Parties to cooperate "either directly or through

appropriate international organizations". Since the entry into force of the 1993

Convention, Australia, Japan and New Zealand have sought to cooperate through the

latter mechanism.123 However, the fact that the three countries established the

Commission under the 1993 Convention does not mean the obligation to cooperate

imposed by Article 64 (1) is spent. Even though UNCLOS envisages that some of the

most important obligations it establishes should be discharged through appropriate

subsidiary organizations the obligations themselves remain and are fundamental. They are

not diluted or supplanted — let alone eliminated — by the creation of organizations such

as the Commission.

112. The continuing application of UNCLOS obligations founds the position taken

by A/NZ that a State party to a regional treaty, which deliberately prevents the object and

purpose of that treaty from being achieved through repeated unilateral action and the

threat of unilateral action, can be called to account for this failure through the mechanisms

that UNCLOS provides. While the 1993 Convention was intended as a means of

implementing the obligations imposed by UNCLOS in respect of highly migratory species,

it is not a means of escaping those obligations.

113. In referring to cooperation "through appropriate international organizations"

Article 64 appears to refer to existing, established organizations. But it also deals with the

situation where an appropriate international organization does not exist. In that case,

States Parties are under an obligation not just "to establish such an organization" but also

to "participate in its work". States Parties cannot meet the obligation to cooperate by the

one step of establishing a new organization; they must also participate in its work, which

connotes the ongoing nature of the obligation. If the obligation to cooperate is a

continuing one in relation to a new organization, it must also be a continuing one in

relation to an established organization.

114. For these reasons the argument of Japan that the mere existence of the 1993 123 As noted in the A/NZ Statements of Claim (Dossier, vol. 1, No. 3, para. 54; No. 4, para. 54,

respectively).

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Convention entails the "fulfilment by the three States Parties to it of the duty to cooperate

in relation to the southern bluefin tuna fishery"124 cannot be accepted.

(ii) Article 116

115. Japan further claims that "UNCLOS Article 116 is also covered generally by

CCSBT as a whole and in particular by CCSBT Article 8 (4) (c) and (d)".125

116. Article 116 imposes limitations on the right of States to fish on the high seas.

The negotiating history of the UNCLOS provisions dealing with high seas fisheries reflects

a general view on the part of States that the right to fish on the high seas was not

unfettered.

117. One constraint imposed by Article 116 is each State's "treaty obligations",126

which, as a matter of interpretation, must include any treaty obligation which bears on its

right to fish on the high seas. Those obligations in the case of Japan include its obligations

under the 1993 Convention. Therefore, the obverse of the position put forward by Japan

would be correct, viz., that Article 116 actually reinforces and provides an added

dimension to the obligations under the 1993 Convention. The 1993 Convention does not,

as Japan asserts, deprive Article 116 of its continuing application.

118. Article 116 also constrains Japan's right to fish on the high seas by requiring

that it does so subject to the rights and duties as well as the interests of coastal States

provided for, inter alia, in Article 64.127 As shown above, the obligations in Article 64 are

not "covered" by the 1993 Convention.128 Nor is the application of Article 64 in the

context of Article 116 "covered" by the 1993 Convention.

119. As a further limit on the right to fish on the high seas, Article 116 makes that

right subject to the provisions of section 2 of Part VII.129 These provisions deal with the

conservation and management of the living resources of the high seas. As argued below,

they impose fundamental obligations which are not "covered" by the 1993 Convention.

124 Japan, Memorial on Jurisdiction, vol. 1, para. 118. 125 Japan, Memorial on Jurisdiction, vol. 1, para. 36. 126 UNCLOS, Article 116 (a). 127 UNCLOS, Article 116 (b). 128 See above, para. 36. 129 UNCLOS, Art. 116 (c).

52

Nor is their application in the context of Article 116 so "covered".

(iii) Article 117

120. Japan argues that Article 117 is "covered" by Article 5 (1) of the 1993

Convention.130 Article 117 deals with the conservation of the living resources of the high

seas. It imposes two duties on a State Party. The first is to take measures in relation to its

own nationals necessary for the conservation of living resources; the second is to

cooperate with other States in taking such measures. A/NZ claim that Japan breached

Article 117 by failing to cooperate with them in taking measures for its nationals which are

necessary for the conservation of SBT.131

121. An analysis of Article 5 (1) of the 1993 Convention132 demonstrates that it

does not "cover" the duty to cooperate established by Article 117. Article 5 (1) imposes

an obligation on an individual party to take the necessary action to enforce the

Convention, in particular, to enforce national allocations of TAC once agreed on. It does

not impose the duty to cooperate with the other parties which is established by Article

117.

(iv) Article 118

122. Japan asserts that Article 118 of UNCLOS is covered by the 1993 Convention

generally and by the mandate specifically given to the Commission in Article 8.133

123. Article 118 of UNCLOS places an obligation on States to cooperate in the

conservation and management of the living resources in the areas of the high seas, which

include SBT, inter alia, through the establishment of fisheries organizations, such as the

Commission. It is clear that the States which negotiated UNCLOS recognized the

fundamental importance of the obligation upon States to cooperate in the conservation and

130 Japan, Memorial on Jurisdiction, vol. 1, para. 36. 131 Australia's Statement of Claim, Dossier vol. 1, No. 3, para. 55; New Zealand's Statement of Claim,

Dossier vol. 1, No. 4, para. 55. 132 Article 5 (1) provides that:

"Each Party shall take all action necessary to ensure the enforcement of this Convention and compliance with measures which become binding under paragraph 7 of Article 8."

133 Japan, Memorial on Jurisdiction, vol. 1, para. 36.

53

management of the living resources of the high seas, which is encompassed in Article

118.134

124. As with Article 64, Japan asserts that this obligation was fulfilled once and for

all by the conclusion of the 1993 Convention.135 But, again, the fact that Australia, Japan

and New Zealand established the Commission under the 1993 Convention does not mean

the obligation to cooperate imposed by Article 118 is spent. Article 118 places a

continuing obligation on Japan to cooperate with A/NZ in the conservation and

management of the seriously depleted SBT stock. This obligation is not "covered" by the

1993 Convention generally or Article 8 specifically.

125. In a statement it made to the UN Committee on the Peaceful Uses of the Sea-

Bed and the Ocean Floor beyond the Limits of National Jurisdiction in 1971, Japan

recognised that: "When a stock of fish was in danger of depletion, no State could disregard the general obligation to cooperate with other States in keeping fishing activities down to an appropriate level."136

Such cooperation is of even greater importance when a fish stock is already seriously 134 In the UN Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits

of National Jurisdiction, which undertook the preparatory work for the Third UN Conference on the Law of the Sea, delegations made statements emphasising the importance of co-operation and put forward draft texts which incorporated provisions on co-operation. For example, Principle XIII of the paper submitted by Australia and New Zealand (A/AC.138/SC.II/L.11) to the Sea-Bed Committee in 1972 dealt with international co-operation in relation to species in areas beyond national fisheries jurisdiction in the following way:

"International arrangements, including where appropriate international fisheries commissions, shall be established for the management of 'wide-ranging' species and as appropriate 'bathypelagic' species and other species that inhabit the waters beyond the limits of national fisheries resource jurisdiction. All States shall have an equal right to participate in such organizations."

At the second session of the Third Law of the Sea Conference in 1974, the United States submitted a draft article on the living resources of the high seas, paragraph 1 of which required States to:

"[C]o-operate with each other in the exploitation and conservation of living resources in areas beyond the economic zone of coastal States. States exploiting identical resources, or different resources located in the same area, shall enter into fisheries management agreements, and establish appropriate multilateral fisheries organizations, for the purpose of maintaining these resources."

See A/CONF.62/C.2/L.80; III Official Records, p. 239. 135 Japan, Memorial on Jurisdiction, vol. 1, para. 118. 136 Fifth meeting of Sub-Committee II, A/AC.138/SC.II/SR.4-23, p. 5.

54

depleted rather than in danger of depletion. But now the Tribunal is told by Japan that the

"general obligation" no longer exists.

(v) Article 119

126. Japan claims that Article 119 of UNCLOS is "covered" by the detailed duties

of the Commission and Scientific Committee set out in Articles 8 and 9 respectively of the

1993 Convention.137 Article 119 imposes a number of obligations on States Parties in

relation to the taking of conservation measures. As the negotiating history of Article 119

shows, many States acknowledged (in statements and in the submission of draft articles)

the critical importance of UNCLOS containing an obligation upon States to apply

appropriate conservation measures for the living resources of the high seas.138

127. Articles 8 and 9 of the 1993 Convention do represent an effort by Australia,

Japan and New Zealand to address many of their fundamental obligations under Article

119. However, Articles 8 and 9 do not "cover" Article 119 as suggested by Japan. They

do not exclude or modify the continuing obligations imposed upon the three countries by

Article 119, let alone exhaust them. It may also be noted that Articles 8 and 9 do not give

effect to Article 119 (3) which requires States to ensure conservation measures and their

implementation do not discriminate against the fishermen of any State.

(vi) Conclusion

128. For these reasons, the 1993 Convention does not "cover" relevant provisions

of UNCLOS with respect to the conservation and management of SBT, and there is

nothing in its text which would indicate that it was intended to supplant those obligations.

No doubt the 1993 Convention sought to achieve results which would assist in fulfilling

the objects and purposes of UNCLOS in respect of SBT. But whether it would do so was

137 Japan, Memorial on Jurisdiction, vol. 1, para. 36. 138 In its statement on the high seas delivered in 1974 by its representative (Mr Galindo Pohl) to the

thirty-first meeting of Committee II of the Conference held on 27 July 1971(II Official Records, p. 235), El Salvador stated that:

"Fishing in the high seas must be governed by regulations that would meet the new circumstances created by current technological development, with its threat of exhausting species....Access of all States without discrimination to fishing in the high seas should be expressly assured, with the proviso that it should not result in over-exploitation, depletion or destruction of the resources.....".

55

contingent upon how the 1993 Convention would be implemented in practice. There was

certainly no agreement by the parties to the 1993 Convention to override or supplant their

UNCLOS obligations, irrespective of whether the 1993 Convention would be a success.

In short, the 1993 Convention was intended as a means of the fulfilment of continuing

UNCLOS obligations, not as a derogation from them.

(b) The 1993 Convention was not intended to derogate from Part XV

129. Japan has not annexed to its Memorial any document indicating that it had,

prior to this dispute, taken the view that by concluding the 1993 Convention the parties

discharged once for all their UNCLOS obligations in respect of SBT. That argument is

entirely at odds with the evidence. Nor has it provided any evidence of any previous view

that, on the specific subject of dispute settlement, Article 16 precludes recourse to the

UNCLOS Part XV mechanism, for example by reference to the travaux préparatoires of

the 1993 Convention.

130. The question of institutionalising the trilateral management arrangements for

SBT in a treaty was raised at the very first meeting of the three parties in 1982 and

continued to recur in an inchoate way for several more years. In these early years, the

only extensive discussion of the relationship a treaty might have with UNCLOS was in

1984. Both Australia and New Zealand then made clear their preference for a treaty.

Australia spoke of the “need to ensure [its] conformity with Law of the Sea

obligations”,139 while New Zealand considered that its suggestion of zonal quotas would

be “consistent with [a particular] obligation under the Law of the Sea Convention”.140

Japan “had no firm view” as to the utility of having a treaty at all,141 and thus took no

position on the issue of its relationship with the 1982 Convention, then newly adopted.

131. The decision to negotiate a treaty on SBT was not made until 1988. Japan’s

view at that time as to the relationship between UNCLOS and the proposed treaty may be

139 Annex 38, p. 25. 140 Ibid., p.24. 141 Ibid., p.25.

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inferred from the Report of the Second Meeting of the Trilateral Working Group on

Possible Institutional Arrangements for International Management of Southern Bluefin

Tuna,142 held in September 1988. This document records in considerable detail the

discussions among the parties on legal issues surrounding the proposed treaty. There was

no suggestion from anyone that the effect of the proposed instrument would be to displace

UNCLOS obligations, if and when UNCLOS came into force. Japan’s own position on

the new law of the sea was of course evolving at this time. For example, in response to

A/NZ proposals to insert in the proposed text a reference to the EEZ, it is noted that

“Japan did not favour the use of the term Exclusive Economic Zone (EEZ) as UNCLOS is

not yet in force.”143

132. A year later, the Report of the Fourth Meeting of the Working Group on

Institutional Arrangements records that:

“Japan believed that the major difference between their approach and Australia and New Zealand’s was the detail the respective countries wished to incorporate in the convention. Japan had wanted to keep the convention as simple as possible, whereas Australia and New Zealand had tried to include more detail.”144

It is difficult to see how Japan’s desire for simplicity can be reconciled with an intention to

“cover” all relevant provisions of UNCLOS.

133. Because of the difficulties encountered, the parties appear then to have broken

off negotiations on a draft treaty for some time. It was external developments, specifically

concern at the possible ramifications for SBT management of developments in the

northern bluefin tuna (Thunnus thynnus) fishery, that brought them back to the table. But

there are no subsequent indications of Japan adopting a different view, and it continued to

prefer a relatively simple text, one largely based on the existing forms of cooperation

142 Annex 40. The name of this group varied in the course of its existence. It will be referred to as the

Working Group on Institutional Arrangements. 143 Annex 39, p.3. This highlights a further internal contradiction in Japan’s argument. In 1993

UNCLOS was still not in force. Japan now claims that by concluding the 1993 Convention it exhausted an obligation that was not then in force.

57

which had developed during the 1980s.

134. Some indication of the parties’ views on the matter can be gained from actions

taken following the conclusion of the 1993 Convention. In November 1993, by which

time all three parties had already signed that Convention, it was decided to undertake a

joint diplomatic démarche to Indonesia, Panama and the Republic of Korea, as well as a

parallel unofficial approach to Taiwan, to encourage them to cooperate with the new

Commission. The draft text attached to the record of the meeting states:

“Under generally accepted principles of international law reflected in the 1982 United Nations Convention on the Law of the Sea, all States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the sea.”145

This says nothing about an imminent eclipse of that duty for the signatories in respect of

SBT through the entry into force of the 1993 Convention. Nor does it hold out to the

addressee States the prospect that they can discharge their own duty simply by acceding to

the 1993 Convention.

135. Then, in a redraft of the text of the démarche put to Japan and Australia by

New Zealand in April 1994,146 an explicit link was drawn between the two instruments in

the following terms:

“The [1993] Convention was agreed taking into account the principles of international law reflected in the 1982 United Nations Convention on the Law of the Sea.”

Early informal reactions from Japan to this redraft were that Japan had no difficulty with

the text as proposed to be delivered to Indonesia and Korea. The written response

eventually conveyed by Japan on 5 August 1994147 confirmed that the terms of the new

144 Annex 40, p.1. 145 Annex 43, p.33. 146 Annex 44, p.2. 147 Annex 45.

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draft were acceptable, although there was a difficulty with the idea of an informal

approach to Taiwan, and there were also questions of timing. Thus, even after the text of

the 1993 Convention was settled and it had come into force, there is still no evidence that

Japan considered UNCLOS to have been supplanted pro tanto by the 1993 Convention.

136. Japan does however rely on the travaux of Article 16 of the 1993 Convention

in support of its present view.148 But the inferences Japan seeks to draw from the history

of Article 16 do not support it.

137. Dispute settlement was among the “final clauses” which successive meetings

of the parties in the late 1980s did not have time to consider, and which were eventually

referred to a Legal Drafting Group.149 By the time serious negotiations resumed in 1992,

there had been an evolution in A/NZ positions. The New Zealand alternative formulation

in the text of 13 February 1992150 provided for compulsory arbitration, and Australia too

now favoured some form of compulsory dispute settlement.151 But Japan declined to

reconsider its position. For example, in a facsimile from the Japanese Embassy in

Canberra to Australia’s Department of Foreign Affairs and Trade dated 9 July 1992

covering Japan’s suggested amendments to the then draft text, it is stated in relation to the

dispute settlement article:

“New Zealand has proposed that Article 25 of the Convention for the Conservation of Antarctic Marine Living Resources be included in toto. In that Convention the International Court of Justice or arbitration is stipulated because of the possibility that delicate problems relating to sovereign territory in the Antarctic may occur. We accordingly feel that our proposal is sufficient because we cannot recognise the necessity of including in a convention for the conservation of southern bluefin tuna such a strict provision as is found in the above-mentioned Convention and such a severe stipulation is not found even in the fisheries conventions that Japan has concluded.”152

148 Japan, Memorial on Jurisdiction, vol. 1, paras. 37-48. 149 As recorded by Japan: ibid., paras. 40-42. 150 Quoted by Japan: ibid., para. 45. 151 Comments quoted by Japan, ibid., para. 46.

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138. The 6th meeting of the Working Group on Institutional Arrangements, held

from 12 to 14 August 1992, largely settled the final form of the 1993 Convention. A/NZ

sought to accommodate Japan without abandoning altogether the principle of compulsory

dispute settlement for the 1993 Convention. A draft text of 13 August 1992153 proposed a

further alternative: internal non-binding conciliation, which if not successful would be

followed by compulsory reference to the International Court. But Japan would not agree

on any form of compulsory dispute settlement for the new treaty, and Article 16 was

adopted instead.

139. Thus, it is the case that “the possibility of compulsory dispute settlement was

considered and deliberately was not adopted” for the 1993 Convention.154 But this tells

only half the story. Ultimately, A/NZ accepted Article 16 in its present form as part of

Japan’s price for having the 1993 Convention at all. But it is perfectly clear, from the

context as from the record, that the debate concerned the question of dispute settlement

under that Convention. There was at no stage any suggestion that the 1993 Convention,

with a weak dispute settlement provision saying little more than what is said in Article 33

of the United Nations Charter, would have, or was intended to have, the effect of

derogating from the comprehensive and binding procedures of Part XV of UNCLOS in

relation to UNCLOS obligations. Nor would A/NZ have entertained any such suggestion,

had it been made. They were seeking by the conclusion of the 1993 Convention to take a

step forward, not two steps back.

140. Japan further asserts that:

“No suggestion was made that recourse to the dispute settlement provisions of UNCLOS could provide an alternative and compulsory method of achieving judicial or arbitral settlement of disputes under CCSBT.”155

152 Annex 41, p.4. 153 Annex 42, third alternative of Article XV, at p.11. 154 Japan, Memorial on Jurisdiction, vol. 1, para. 48. 155 Japan, Memorial on Jurisdiction, vol. 1, para. 48.

60

But this is not the point. A/NZ claim that, by conducting its unilateral experimental

fishing, Japan is in breach of its obligations under UNCLOS. It is entirely appropriate that

disputes concerning the interpretation and application of UNCLOS are dealt with under

UNCLOS itself, if no other solution can be found. If Japan had wished by Article 16 to

exclude from compulsory dispute settlement all future disputes over SBT, whatever their

legal basis, the onus was on it to make that proposal. Such a proposal would have raised a

host of questions, as will now be shown.156

(c) The relation between UNCLOS and specific implementation conventions

141. Even if the 1993 Convention had purported to derogate from UNCLOS,

including Part XV, it could not have done so effectively so far as the present Tribunal is

concerned. In fact UNCLOS goes to considerable trouble to spell out the available range

of relations between its own provisions and those of other treaties. It calls on the parties

to UNCLOS to implement many of its obligations by cooperative means, including by

participation in or the formation of specific organizations or the conclusion of specific

agreements. It does so without in any way derogating from its own dispute settlement

mechanisms in relation to obligations arising under UNCLOS itself or covered by its

provisions. And it is careful to prevent some of the parties to UNCLOS from derogating

from their obligations other than through means which are at least as effective in giving

rise to binding decisions. All this is fully consistent with the character of UNCLOS as “a

legal order for the seas and oceans”.157

142. Nonetheless Japan argues that the 1993 Convention precludes the jurisdiction

of Part XV tribunals, apparently as a matter of both substance and of dispute settlement.

156 Even in relation to issues solely concerning the interpretation or implementation of the 1993

Convention, recourse to Part XV of UNCLOS is not excluded. Article 16 for its part is certainly capable of being read as including a compulsory Part XV process in the “other peaceful means of their own choice” in paragraph 1 which is brought into play by paragraph 2 if there is no agreement to refer the dispute to the International Court of Justice or to arbitration; in such a situation the parties have a “responsibility of continuing to seek to resolve [the dispute] by any of the various peaceful means referred to in paragraph 1 above.”

157 See above, paras. 25-31.

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It is accordingly necessary to deal separately with the express provisions of UNCLOS in

these respects.

(i) The 1993 Convention does not and cannot exclude substantive UNCLOS

obligations

143. As to the substance, one begins with Article 64, entitled “Highly Migratory

Species”. This provides as follows:

“1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work. 2. The provisions of paragraph 1 apply in addition to the other provisions of this Part.”

It should be noted that Article 64 creates obligations for States, not for regional fishery

organizations, and that it is not exhausted by the formation of such an organization. In

other words it is a continuing individual obligation, which is to be performed individually

but can be performed through the medium of a competent organization. Similar remarks

apply, mutatis mutandis, to the obligations of cooperation contained in Part VII, Section

2, in particular Articles 117 and 118.158 Moreover Article 64 envisages that there will be a

single international organization which is competent in relation to one or more particular

species. Through that organization, if it is effectively implemented in the interests of

conservation and management, its members discharge a responsibility not only inter se but

to the other parties to UNCLOS. The requirements of UNCLOS continue to apply to

them in their individual and collective conduct.

158 See further above, paras. 120-125.

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144. UNCLOS specifically addresses the issue of its relationship to other treaties.

It does so in Article 311, which reads as follows:

Relation to other conventions and international agreements

1. This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958. 2. This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 3. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. 4. States Parties intending to conclude an agreement referred to in paragraph 3 shall notify the other States Parties through the depositary of this Convention of their intention to conclude the agreement and of the modification or suspension for which it provides. 5. This article does not affect international agreements expressly permitted or preserved by other articles of this Convention. 6. States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.”

Article 311 is sandwiched between Articles 309-310, which prohibit reservations to

UNCLOS, and Article 312, which deals with amendments. It is clearly a central provision.

Since all the parties to the 1993 Convention are parties to UNCLOS as well, there can be

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no question of any modification inter se of the effects of UNCLOS, other than as

permitted by Article 311.159

145. Japan implies that Article 311 (5) exempts the 1993 Convention from any

requirement of conformity with UNCLOS, on the basis that the 1993 Convention is

“expressly permitted” by Article 64.160 But it can hardly be the case that an organization is

“expressly permitted” by Article 64 if its constitution allows the whole process of

cooperation and management to be stymied by the unaccountable decision of a single

party. The purpose of establishing international organizations under Article 64 is to

ensure conservation and to promote optimum utilization, not to give to any single State a

veto over decision-making which extends to the performance of UNCLOS obligations

themselves. Far from expressly permitting international agreements, Article 64 does not

refer to any international agreement as such. Rather it refers to “appropriate international

organizations”, and only for the purposes of implementing the obligation of cooperation.

That is not a provision which “expressly permits” a treaty in derogation of the general

principles of UNCLOS as to conservation and sustainable utilization of highly migratory

species. It should be added that in the UNCLOS negotiations, Article 64 was not treated

as one of the provisions to which Article 311 (5) was intended to refer, nor is it listed as

such in the Virginia Commentary.161

146. Accordingly, the 1993 Convention has to be considered as falling within either

Article 311 (2) or 311 (3). Since the 1993 Convention refers in its preamble to UNCLOS,

and must be presumed to be consistent with it, the better view is that it is covered by

Article 311 (2). There is no trace in the travaux of the 1993 Convention of any intention

to override or derogate from its provisions,162 and none of the parties at any time

considered giving the notice required by Article 311 (4). Accordingly there is no basis for

treating the 1993 Convention as modifying in any respect the substantive obligations of

159 See Vienna Convention on the Law of Treaties, 1969, Article 41. 160 Japan’s Memorial on Jurisdiction, vol. 1, para. 28. 161 See Virginia Commentary, Vol. V, at p. 240 (para. 311.8). 162 See above, paras. 129-140.

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UNCLOS. That would be, in any event, the normal interpretation of one treaty which

refers to an earlier one which it purports to implement.

147. Even if there were any indication that the parties had considered they were

modifying UNCLOS inter se by concluding the 1993 Convention (which there is not),

such a modification would not satisfy the requirements of Article 311 (3), for a number of

reasons. First, the 1993 Convention is not an agreement which is applicable “solely to the

relations between” its parties, since it regulates a resource, SBT, in the fishing of which

other States have an interest and in the conservation and management of which there is a

general public interest (reflected, inter alia, by the provisions of Articles 116-119 of

UNCLOS). The 1993 Convention is quite unlike a bilateral boundary agreement or transit

agreement, to which Japan however compares it.163 It is not concerned simply to regulate

the rights of two or three States inter se. Secondly, if the 1993 Convention did purport to

modify relevant UNCLOS obligations as between the parties, it would affect provisions

“derogation from which is incompatible with the effective execution of the object and

purpose of” UNCLOS. By the same token, one of “the basic principles embodied” in

UNCLOS is cooperation in the conservation and management of high seas fisheries, and in

this respect too, any derogation from UNCLOS would not meet the criteria laid down in

Article 311 (3). Thirdly, if the 1993 Convention had been intended to derogate from the

conservation provisions of UNCLOS, it would risk affecting “the enjoyment by other

States Parties of their rights”, inter alia under Article 116.

148. For all these reasons, there is no basis for treating the 1993 Convention as

anything other than an agreement covered by Article 311 (2), one which must be

“compatible with” UNCLOS.164 The interpretation implicitly supported by Japan, in

accordance with which Japan is entitled to fish above historic allocations, in circumstances

which endanger the depleted stock of SBT, without any reference to binding dispute

settlement or to Articles 116-119, is not compatible with UNCLOS. Article 311 (2) thus

163 Japan’s Memorial on Jurisdiction, vol. 1, para. 119. 164 On Article 311 (2)’s requirement of compatibility with UNCLOS see also the La Bretagne

Arbitration (Canada/France) (1985) 82 ILR 591 at pp. 629-630.

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strongly reinforces the general presumptions of consistency and parallelism that would

apply anyway, under general international law, to an implementation agreement which

makes express reference to a head agreement.

(ii) Article 16 does not and cannot exclude recourse to Part XV procedures

149. Alternatively, Japan appears to argue that Article 16 embodies an agreement

between the parties opting out of Part XV for any dispute which can be described as a

dispute “concerning the interpretation or application of” the 1993 Convention, even if the

dispute is also one concerning the interpretation or application of UNCLOS.165 It should

be noted that this conclusion is said to follow from the mere existence of the 1993

Convention, including Article 16. Thus it would follow whether or not the disputed

conduct was consistent with the 1993 Convention. Just by virtue of being a party to the

1993 Convention, in effect a State would be immunised from scrutiny for conduct

violative of both treaties. That is not a plausible view. Moreover (a) this is not what

Article 16 actually says;166 (b) there is no indication whatever in the travaux that Article 16

was intended to have this effect,167 and (c) the suggested interpretation is inconsistent with

the presumption of the parallelism of compromissory clauses, already referred to.168

Japan’s extreme interpretation of Article 16 must accordingly be rejected.

150. Assume, however, for the sake of argument, that Article 16 were to be

165 It has already been shown that, since the 1993 Convention does not “cover” all relevant UNCLOS

obligations, the present dispute cannot in any sense be described solely as a dispute “concerning the interpretation or application of the 1993 Convention”. And this is true even though cooperation under the 1993 Convention, had it been forthcoming from Japan, could have been a way of resolving the dispute. See above, paras. 109-128.

166 It might be argued that Article 16 amounts to a renunciation in advance of any further procedure within the meaning of Article 281 (1) of UNCLOS. But this cannot be right, for a number of reasons: (a) Article 281 is concerned with ad hoc agreement to settle a dispute, not with a compromissory clause in another treaty (which is covered by Article 282); (b) Article 16 of the 1993 Convention contains no negative implication, it simply leaves the mode of settlement open; (c) such an interpretation of Article 16 would be incompatible with UNCLOS and is accordingly not open to this Tribunal under Article 293. In fact, as has been demonstrated, there was no agreement excluding any further procedure in this case: see above, paragraph 74.

167 See above, paras. 129-140. 168 See above, paras. 105-106.

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interpreted as an agreement by which A/NZ have renounced in advance any resort to Part

XV in relation to SBT. It is quite clear that such an interpretation would be incompatible

with Article 282, since, as already demonstrated, Article 16 does not amount to a

procedure “entailing a binding decision”.169 Accordingly that putative interpretation is not

open to this Tribunal, which, pursuant to Article 293, can only apply the 1993 Convention

in a manner consistent with UNCLOS. Quite apart from any presumption of consistency

under general international law, it is simply not open to a Tribunal exercising jurisdiction

under Part XV to apply another treaty provision inconsistent with UNCLOS.

169 See above, para. 91.

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(iii) Conclusion

151. It follows that the jurisdiction of the present Tribunal, established under Part

XV in accordance with the arguments in the preceding Chapter, is not excluded by any

provision of the 1993 Convention, or by any subsequent agreement of the parties to the

present dispute.170 In accordance with the clear and explicit provisions of UNCLOS itself,

this Tribunal’s jurisdiction is securely established.

(d) Japan’s reliance on certain “general principles of law”

152. Japan seeks to avoid this conclusion primarily by reliance on two Latin

maxims, lex posterior derogat legi priori and, with more emphasis, lex specialis derogat

legi generali.171 It qualifies these maxims as general principles of law. The objections to

its reliance on them are manifold, and are set out below. They may be summarised as

follows. First, the maxims are only required if there is an inconsistency between the two

texts, but as has been seen there is no inconsistency between them. Secondly, even if there

were such an inconsistency, there is no need or room for recourse to general principles

concerning conflicts between treaties when the relations between the two treaties

concerned are expressly dealt with in the dominant text (which in turn is expressly referred

to in the subsidiary one). Or, lest it be thought that superior argumentative strength

derives from the use of Latin - expressum facit cessare tacitum.

170 In its Memorial on Jurisdiction, vol. 1, paras. 142-143, Japan refers to two multilateral agreements

which in its view contradict this argument. The first, the FAO Compliance Agreement of 1993, was adopted before UNCLOS came into force. It refers of course only to disputes “with regard to the interpretation or application of the provisions of this Agreement”. It does not purport to affect Part XV jurisdiction with respect to disputes concerning the interpretation or application of UNCLOS itself. By contrast the Agreement for the Implementation 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 of 4 December 1995 (“Straddling and Highly Migratory Stocks Agreement”), adopted after UNCLOS had entered into force, applies Part XV mutatis mutandis to disputes arising under that Agreement. The two agreements are plainly covered by Article 288 (2) of UNCLOS, since they are “related agreements” within the meaning of that provision. Neither affects the argument set out in the text.

171 The term lex specialis is used 42 times in the text of Japan’s Memorial on Jurisdiction.

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153. In short, even if (quod non) the two texts were held to be inconsistent, the

express provisions of UNCLOS as to its relationship with other treaties should prevail, as

between States all of whom are parties to both treaties. If any resort to general principles

of interpretation is required, it must be to the following general principle: that two

instruments in the same field and involving the same parties are presumed to be consistent

with each other. That presumption is powerfully reinforced where one treaty expressly

refers to the other. It is further reinforced when the earlier treaty (UNCLOS) specifically

contemplates categories of later treaties, on conditions which it specifies. All indicators

point towards the conclusion that the parties who drew up the 1993 Convention intended

it to operate within the parameters clearly laid down in UNCLOS. No indicators point in

the opposite direction.

154. It is easy to interpret UNCLOS and the 1993 Convention as being consistent

with each other, substantively. UNCLOS establishes the relevant general principles; the

1993 Convention provides a mechanism which is capable (contingently) of giving effect to

them. But it does not displace the general principles of UNCLOS, and if those principles

are violated, other parties to UNCLOS who are affected by the breach have the right to

complain. On the basis of that interpretation, this Tribunal has jurisdiction.

155. It is also easy to interpret Part XV of UNCLOS and Article 16 of the 1993

Convention as being consistent with each other, procedurally. Part XV establishes a

mandatory jurisdiction for disputes which concern the interpretation or application of

UNCLOS. It specifies the cases in which its mandatory jurisdiction may be displaced by

agreement to a procedure outside Part XV, viz., where that procedure “entails a binding

decision”.172 Article 16 of the 1993 Convention does not entail a binding decision. If a

dispute arises concerning the interpretation and application of UNCLOS, and the parties

to the 1993 Convention agree that it is to be submitted to some procedure which “entails a

binding decision”, then and then only is Part XV jurisdiction excluded. It is excluded not

because there is an inconsistency between Article 16 and Part XV, but because Part XV

172 See UNCLOS Article 282, above, para. 90.

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expressly so provides. On the basis of that interpretation, too, this Tribunal has

jurisdiction.

156. There is accordingly no need at all to resort, in any language, to maxims of

interpretation that presuppose a conflict between different treaty provisions. The lex

specialis principle is irrelevant, just as much as the lex posterior principle: both only apply

in the event of inconsistency.173 That very point is made, for example, by Jenks, a leading

authority on general principles and their application:

“A divergence between treaty provisions dealing with the same subject or related subjects does not in itself constitute a conflict. Two law-making treaties with a number of common parties may deal with the same subject from different points of view or be applicable in different circumstances, or one of the treaties may embody obligations more far-reaching than, but not inconsistent with, those of the other. A conflict in the strict sense of direct incompatibility arises only where a party to the two treaties cannot simultaneously comply with its obligations under both treaties.”174

In the present case, there is, for the reasons already explained, no inconsistency between

the two treaties, whether they are viewed from the perspective of substance or of

procedure. In the absence of any inconsistency, neither the lex posterior nor the lex

specialis principle can have any application. Japan’s discussion of those principles is

accordingly hypothetical. But again for the sake of argument something will be said

briefly about each.

173 Generally on the relations between conflicting treaties see W. Karl, “Treaties, Conflicts Between”,

in R. Bernhardt (ed.) Encyclopedia of Public International Law, vol. 7 (1984), p. 467. 174 W. Jenks, “The Conflict of Law-Making Treaties” (1953) 30 BYBIL 401 at pp. 425-6.

70

(i) The 1993 Convention and the lex posterior principle

157. UNCLOS was adopted in 1982 before the 1993 Convention. However that does

not lead to the automatic conclusion, as stated by Japan, that the 1993 Convention as the

later treaty prevails over UNCLOS.175 This is not a case of the same parties to a treaty

replacing one treaty with another. It involves some of the parties to a multilateral treaty

concluding a treaty inter se which is alleged (by one of them) to derogate from that

multilateral treaty.

158. Given that this issue is dealt with expressly by Article 311 of UNCLOS, it is not

necessary to turn to the provisions of the Vienna Convention on the Law of Treaties, such

as Articles 30, 41 and 59.176 However the principles to be applied are essentially the same,

whether under Article 311 or the Vienna Convention. Under the Vienna Convention,

where parties to a multilateral treaty seek to modify that treaty between themselves by a

later treaty, they may only do so in cases where the subsequent agreement does not affect

the application of the basic principles of the head treaty and does not affect third States.

Under Article 311 of UNCLOS, it is not possible to enter subsequent agreements which

relate to a provision of UNCLOS derogation from which is incompatible with the effective

execution of its object and purpose. As shown above, the 1993 Convention, on Japan’s

implicit construction of it, does not satisfy these criteria. More fundamentally, of course,

there is no reason to interpret it in the way Japan seeks to do.

159. It should be stressed that the present case must be sharply distinguished from the

relationship between UNCLOS and other examples of subsequent agreements, such as

maritime boundary delimitations.177 Agreements on maritime boundaries deal with a one-

off issue between States, and in most cases, record a situation which becomes, as it were,

175 Japan’s Memorial on Jurisdiction, vol. 1, paras. 127-131. 176 Article 30 of the Vienna Convention on the Law of Treaties deals with the “Application of

successive treaties relating to the same subject matter”. Article 41 deals with “Agreements to modify multilateral treaties between certain of the parties only”. Article 59 deals with “Termination or suspension of the operation of a treaty implied by conclusion of a later treaty”.

177 See UNCLOS Articles 74 (EEZ), 83 (continental shelf).

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a droit acquis. Once States have decided, in that subsequent agreement, on the

delimitation of a continental shelf or an exclusive economic zone, there is simply no need

to go back to the provisions of UNCLOS. Regional fisheries agreements, such as the

1993 Convention, deal with a distinctly different issue. Highly migratory species are a

resource of international interest whose management raises ongoing rights and obligations

for many States. In such a case, the relevant provisions of UNCLOS must continue to

apply.

(ii) The 1993 Convention and the lex specialis principle

160. As with the lex posterior principle, so it is with the lex specialis principle. It does

not apply unless there is some inconsistency between the two texts, and there is none here.

It does not apply when the dominant treaty (under which this Tribunal is exercising

jurisdiction) specifically regulates the question of the relationship between the two. There

is simply no need to resort to general principles, when Article 311 of UNCLOS explicitly

sets out the relationship between it and other agreements.

161. However, even if, hypothetically, the application of the lex specialis principle is

considered (i.e. even if a conflict between the two is postulated to which this Tribunal can

have regard), it is not at all self-evident that the 1993 Convention would prevail. In

relation to both the substantive obligations for the conservation and management of high

seas fisheries as well as the obligations on dispute settlement, UNCLOS itself is both

detailed and specific. This is particularly so in relation to dispute settlement. Article 16 is

no more than a menu of options: it falls far short of the comprehensive system of dispute

settlement set out in Part XV.178

178 Japan argues that by virtue of Article 288 (2), the lex specialis principle has been deliberately

preserved in UNCLOS itself: Memorial on Jurisdiction, vol. 1, para. 146. This begs the question, since A/NZ do not rely on Article 288 (2) for the Tribunal's jurisdiction in this case. Rather the Tribunal's jurisdiction here is based on Article 288 (1). Once it is established that the Tribunal has jurisdiction pursuant to Article 288 (1), Article 288 (2) is simply irrelevant. So is Japan’s argument that Article 288 (2) deliberately preserves the lex specialis principle. What Article 288 (2) does is to provide a further basis for Part XV jurisdiction, over and above jurisdiction in relation to disputes concerning the interpretation and application of UNCLOS itself, if some other

72

162. Japan relies on Mavrommatis Palestine Concessions (Jurisdiction) as authority for

the proposition that the lex specialis principle applies in relation to the dispute settlement

provisions in two different treaties.179 However, it fails to mention that the principle was

not applied in that case, precisely because there was held to be no conflict between the

two dispute settlement provisions in question. Other cases Japan cites in support of the

application of lex specialis deal with conflicts between two articles in the same treaty, as

distinct from two articles in different treaties, which is the issue here.180 Where there are

two treaties involved, it is the broader question of the relationship between them which

must be considered, rather than any a priori or automatic application of the lex specialis

principle. In the words of one authority:

“Cumulation rather than derogation is also the rule in the field of peaceful settlement of disputes. Unless there is a clear intention to the contrary, new agreements should be viewed as opening up additional ways leaving the choice to the initiating party. There is no question here of lex posterior, but even solutions on the lines of lex specialis ... would seem unduly restrictive.”181

This must be particularly so when the application of the lex specialis principle would

frustrate the object and purpose of, or violate the actual terms of, the earlier treaty (as

would be the case with Article 282 of UNCLOS).

(iii) Conclusion

163. These arguments are ultimately quite unnecessary, since the position is

agreement so provides. Japan's argument that under Article 288 (2) this Tribunal can only exercise jurisdiction over “related agreements” where a dispute is submitted in accordance with that agreement misses the point. A/NZ do not need to argue that the 1993 Convention is a “related agreement” for the purposes of Article 288 (2), since that is not the basis of jurisdiction on which they rely. This Tribunal’s ability to apply the 1993 Convention comes from Article 293 and not from Article 288 (2).

179 (1924) PCIJ, Ser. A., No. 2. See Japan, Memorial on Jurisdiction, vol. 1, para. 122. 180 Ibid., footnote 91. Of the cases cited, De Jong, Baljet and Van Den Brink (1984) 78 ILR 225 dealt

with a possible conflict between Articles 5 (4) and 13 of the European Convention on Human Rights and Fanali v Italy (1983) 78 ILR 54 dealt with a possible conflict between Articles 2 (3) and 14 (5) of the International Covenant on Civil and Political Rights.

73

specifically regulated by UNCLOS and there is no need for recourse to “general

principles”. But it may be noted that Japan’s position, if it were to be accepted, would

produce curious, even extraordinary anomalies. It would introduce into international life a

priority of bilateral (or limited multilateral) treaties over general multilateral treaties and of

implementation arrangements over general rules. It would imply that Japan’s

accountability for its unilateral conduct would be greater to third parties under UNCLOS

(e.g. Korea, Indonesia) than to A/NZ. Indeed if Japan is right there would have been

more accountability between the present parties before 1993, under the informal

cooperative arrangements which then existed (assuming UNCLOS had been in force) than

there is now. Yet the purpose of Article 64 is to encourage regional fisheries agreements

and to make them more effective, in conformity with the governing principles contained in

UNCLOS itself. Japan’s arguments would have quite the reverse effect, and they should

not be accepted by the Tribunal.

(3) Conclusion

164. For all these reasons which — general and special — are cumulative, Japan’s

reliance on the 1993 Convention as a means of avoiding accountability for its unilateral

conduct in relation to SBT is misconceived. This Tribunal has jurisdiction.

181 See Karl, op. cit., p. 472.

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CHAPTER 4. JAPAN’S OBJECTIONS TO THE ADMISSIBILITY

OF THE DISPUTE ARE UNFOUNDED

165. In its Memorial on Jurisdiction, Japan does not identify “admissibility” as a

separate ground of objection to the present proceedings. Nevertheless, in particular in

Part XIV of its Memorial on Jurisdiction, it puts forth a number of grounds of objection

which go beyond jurisdictional arguments in the usual sense. These are apparently to be

regarded as objections based on the lack of admissibility of the A/NZ claims. This section

of the Reply will deal with these various grounds.

166. What is noticeable about them is the half-hearted way in which they are put

forward. Few words are expended on their elaboration and little legal authority is cited in

support. In any event, for the reasons that follow, none of the objections to admissibility

at this jurisdictional phase deprive the Tribunal of jurisdiction to hear the substantive

dispute.

(1) The question of justiciability

167. A recurring theme in much of Japan’s Memorial on Jurisdiction is that the

present dispute involves scientific and technical questions and not questions of law.182 It is

contended by Japan, for instance, that A/NZ seek relief, in the form of the imposition of

catch limitations, which involves “asking this Tribunal to exercise an administrative and

distributive competence, a political task that lies outside its judicial function”.183

168. The issue for the Tribunal at this jurisdictional stage is not to determine

whether any particular remedies sought by A/NZ are appropriate. Nor is the Tribunal

182 Japan, Memorial on Jurisdiction, vol. 1, paras. 171-181.

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concerned at this time with whether the scientific evidence supports particular factual

and/or legal contentions of either party. The Tribunal is concerned, at this stage, only with

whether A/NZ have established that there exists a dispute in relation to legal obligations

contained in UNCLOS, i.e. whether the A/NZ claims concern the interpretation or

application of the provisions of UNCLOS. The actual processes of interpretation of those

legal obligations and their application to the facts are matters for the merits. The merits of

the claims are not to be prejudged at the jurisdictional phase by the argument that they

involve technical or scientific questions.

169. A/NZ have already indicated those UNCLOS obligations which are relevant

and in relation to which a dispute exists.184 It is unnecessary to repeat that demonstration.

What is at issue and is central to the dispute is the application of these obligations. This

will require consideration, at the merits phase, of the content of the obligations and of the

factual material put forward by the parties. The fact that issues of scientific evidence and

opinion arise does not make the dispute non-justiciable. Indeed, UNCLOS goes out of the

way to facilitate decisions on technical questions concerning the interpretation and

application of certain articles of UNCLOS, including the fisheries articles, by providing for

special arbitration involving technical and scientific experts.185 If that choice is not made

(and there is no requirement in that regard), the same dispute can be submitted to bodies

composed of legal experts.186 UNCLOS recognises that a dispute may have scientific and

technical aspects, but it is still a dispute concerning the interpretation and application of

the Convention which is capable of legal adjudication.

170. The fact that Japan and A/NZ may have a sharp conflict of view as to the

impact on SBT of fishing above agreed quotas cannot affect the legal character of the

dispute. The claim itself is couched in and depends on the interpretation and application of

183 Ibid., para. 179. A similar argument was put to ITLOS and rejected: see Order, paras. 42-43 and

90.1(c) and (d). 184 See above, e.g., paras. 34-40. 185 See UNCLOS, Annex VIII. 186 See also Article 289, empowering the Tribunal to use scientific or technical experts in effect as

assessors.

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legal norms contained in the relevant UNCLOS articles. This is clear from the terms of

relief sought in paragraph 69 of the Statements of Claim. That is sufficient to make the

claim admissible.

171. In relation to the present claim one can adapt the language of the International

Court in the Advisory Opinion on the Legality of the Threat on Use of Nuclear Weapons,

substituting the term “scientific” for “political”:

“The fact that this question also has [scientific] aspects ... does not suffice to deprive it of its character as a ‘legal question’ and to ‘deprive the Court of a competence expressly conferred on it by its statute... Whatever its [scientific] aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, the assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law.” 187

172. Japan contends, further, that the particular obligations invoked by A/NZ

involve “a matter of scientific inference and prediction and measures that lie within the

margin of appreciation allowed to States”.188 It contends that international tribunals

respect national determinations as to what conservation measures are necessary “unless

they can be shown to be irrational, patently disproportionate, or otherwise fundamentally

flawed”.189 Whether the relevant provisions should be so interpreted, and how any

doctrine of “margin of appreciation” applies to the fishing of a seriously depleted stock

such as SBT, are self-evidently matters for the merits. The language in which these

arguments are made merely confirms that what is at issue is the interpretation and

application of the relevant obligations. The position in this respect is essentially the same

as in the Belgian Linguistics case (Preliminary Objection), a case referred to by Japan,

even though the context of that case was very different.190 There it was argued by

Belgium that the complaints were not covered by the Convention and Protocol but

“form[ed] part of the reserved domain of the Belgian legal order ... there is therefore an

187 ICJ Reports 1996 p. 226 at p. 234 (para. 13). 188 Japan, Memorial on Jurisdiction, vol. 1, para. 172. 189 Ibid., para. 165.

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inherent limit to the exercise of the Court’s jurisdiction”.191 The Court held that the

objection was not preliminary in character, but concerned the substantive interpretation

and application of the Convention.192 The situation is the same here.

(2) The “failure” to proceed against third parties

173. Japan also raises, at least by way of complaint if not outright objection, the

fact that A/NZ have not brought proceedings against third States whose nationals fish for

SBT.193 In fact A/NZ have made efforts, in conjunction with Japan and separately, to

engage third States and other entities and to persuade them, either to accede to the 1993

Convention or at least to restrain their fishing efforts, which have increased in recent years

and are indeed a source of serious concern.194

174. However the failure to proceed against other States is no bar to the present

proceedings against Japan. Japan argues that “Indonesia and the ROK are necessary and

proper parties thereto in whose absence the proceedings against Japan cannot properly

continue”.195 It has, however, been authoritatively held by the International Court in a

series of cases that the non-joinder of third States is only a ground for inadmissibility in

very limited circumstances, which are clearly absent in the present case. As the

International Court made clear in Certain Phosphate Lands in Nauru, it is only where the

legal interests of a third state form “the very subject matter of the decision that is applied

for” that a court or tribunal will be precluded from adjudicating on the claim.196 The legal

190 45 ILR p. 114 (judgment of 9 February 1967). See the reference to the case by Japan in its

Memorial on Jurisdiction, vol. 1, para. 165, note 118. 191 Ibid., pp. 131-2. 192 Ibid.; p. 135. 193 Japan, Memorial on Jurisdiction, vol. 1, paras. 97, 163, 178. 194 Dossier, vol. 3, Nos. 11 & 12, respectively. 195 Japan, Memorial on Jurisdiction, vol. 1, para. 97. 196 ICJ Reports 1992 p. 240 at p. 261 (para. 55). This principle has only ever been applied by the

Court in cases where a decision against a third party was a legally necessary prerequisite to a decision against the respondent, as in Monetary Gold Removed from Rome ICJ Reports 1954 p. 19 and the Case concerning East Timor ICJ Reports 1995 p. 90. In all other cases involving “concurrent tortfeasors”, the case was allowed to proceed against the actual respondent alone, as in

78

interests of third States such as Indonesia and ROK are in no way the subject matter of the

claim raised by A/NZ against Japan: at most they are part, albeit subsidiary, of the factual

matrix. The fact that other States are subject to the same legal obligations under

UNCLOS, and may have engaged in similar activity, does not prevent adjudication on the

obligations of one particular State, Japan.197

175. Nor does the suggestion that this Tribunal would have to act on a

“supposition” concerning the rights and behaviour of third countries198 support the

conclusion that this Tribunal cannot exercise its jurisdiction under Part XV. In any event,

A/NZ deny that any such supposition is required.

176. To summarize, the claims made by A/NZ against Japan concern the failure by

Japan itself to discharge its obligations under UNCLOS. Those obligations are in no way

conditional upon or inextricably linked to any judgment as to the responsibility of third

States. On the contrary, whatever third States may or may not have done or be doing,

Japan’s conduct in engaging in its unilateral EFP is at the heart of the dispute.

the Nicaragua Case (Jurisdiction and Admissibility) ICJ Reports 1984 p. 392 at p. 431 (para. 88), and in the Phosphate Lands case itself.

197 The respective roles of Japan and third States in terms of the overfishing of SBT is a matter for the merits. It is sufficient for present purposes to note that Japan’s position is not at all comparable to that of Korea, Indonesia or Taiwan.

198 Japan, Memorial on Jurisdiction, vol. 1, para. 178.

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(3) The remedial powers of the Tribunal

177. A further alternative ground invoked by Japan as a basis for this Tribunal not

proceeding to the merits is that the remedy of seeking the imposition of a catch quota

sought by A/NZ “far exceeds any entitlement they have under CCSBT (or, indeed,

UNCLOS)”.199 A/NZ, it is asserted, “seek to persuade this Tribunal to exercise a power

that not even an international fisheries commission possesses or has ever possessed”.200 It

is a function “inappropriate to a judicial tribunal”.201

178. It is not necessary for present purposes to explore these categorical assertions.

A/NZ do not accept that there are no circumstances in which a judicial tribunal could

order particular limitations on catch (whether by way of provisional measures or

otherwise). As to provisional measures, this was done by the International Court in the

provisional measures phase of the Fisheries Jurisdiction cases,202 as well as by ITLOS in

the present case.203 As to a final order in these terms, this is expressly envisaged as within

the scope of dispute settlement processes, for example, by the Straddling and Highly

Migratory Stocks Agreement, Article 7 (4)-(6).204 Evidently the States (including Japan)

199 Ibid., para. 175. 200 Ibid., para. 180. 201 Ibid. 202 ICJ Reports 1972 p. 12 at p.17. 203 ITLOS Order, operative para. 1(c). No member of the Tribunal expressed the view that provisional

measures in such terms fell outside the scope of judicial power or process. In fact, a number of judges evidently considered going further. See the Joint Declaration by Vice-President Wolfrum and Judges Caminos, Marotta Rangel, Yankov, Anderson and Eiriksson: Dossier, vol. 4, No. 28.1.

204 Article 7 provides in relevant part as follows:

“1. Without prejudice to the sovereign rights of coastal States for the purpose of exploring and exploiting, conserving and managing the living marine resources within areas under national jurisdiction as provided for in the Convention, and the right of all States for their nationals to engage in fishing on the high seas in accordance with the Convention:

…

(b) with respect to highly migratory fish stocks, the relevant coastal States and other States whose nationals fish for such stocks in the region shall cooperate, either directly or through the appropriate mechanisms for cooperation provided for in Part III, with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region, both within and beyond the areas under national jurisdiction.

80

which negotiated that Agreement, which refers to and is cognate with UNCLOS, did not

think that the allocation of TAC was beyond the reach of the judicial process.

179. The imposition of catch quotas is only one of a number of remedies sought by

A/NZ.205 Other remedies sought include declarations as to breaches of particular articles

2. Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety. To this end, coastal States and States fishing on the high seas have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks. In determining compatible conservation and management measures, States shall:

(a) take into account the conservation and management measures adopted and applied in accordance with Article 61 of the Convention in respect of the same stocks by coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures;

(b) take into account previously agreed measures established and applied for the high seas in accordance with the Convention in respect of the same stocks by relevant coastal States and States fishing on the high seas;

(c) take into account previously agreed measures established and applied in accordance with the Convention in respect of the same stocks by a subregional or regional fisheries management organization or arrangement;

…

4. If no agreement can be reached within a reasonable period of time, any of the States concerned may invoke the procedures for the settlement of disputes provided for in Part VIII.

5. Pending agreement on compatible conservation and management measures, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature. In the event that they are unable to agree on such arrangements, any of the States concerned may, for the purpose of obtaining provisional measures, submit the dispute to a court or tribunal in accordance with the procedures for the settlement of disputes provided for in Part VIII.

6. Provisional arrangements or measures entered into or prescribed pursuant to paragraph 5 shall take into account the provisions of this Part, shall have due regard to the rights and obligations of all States concerned, shall not jeopardize or hamper the reaching of final agreement on compatible conservation and management measures and shall be without prejudice to the final outcome of any dispute settlement procedure.”

Australia, Japan and New Zealand are signatories to the Agreement, and Australia has ratified it. It is not yet in force.

205 See their respective Statements of Claim, para. 69.

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of UNCLOS. Whether a particular remedy is appropriate is a matter that does not arise

until the merits have been considered and a decision reached by the Tribunal that a breach

of obligations has been established. Like the other admissibility grounds already

considered, this argument is irrelevant at the present stage. A/NZ accordingly reserve

further comment on the remedial issues for the time being.

(4) Good faith

180. Japan alleges that A/NZ can only sustain the allegations that Japan did not take

necessary conservation measures “if coupled with a claim that Japan acted in bad faith”.206

It further asserts that A/NZ must be implying that Japan acted in bad faith by relying on its

own evidence and ignoring evidence presented by the Applicants. In general, according to

Japan, the alleged violation of Japan’s duties to conserve high seas and highly migratory

fish and to co-operate in management and utilisation by engaging in experimental fishing

“depends, as do all the A/NZ’s complaints, upon the allegation that Japan was acting in

bad faith”.207

181. In this context Japan notes that the Statements of Claim make no reference to

Article 300 of UNCLOS.208 This failure is said to be fatal, since only an allegation of bad

faith could sustain the A/NZ case of alleged breaches of UNCLOS.209 This statement is,

however, incorrect. Article 300 is referred to in paragraph 45 of the Statements of Claim,

and A/NZ see that article as clearly relevant to the interpretation and application of the

206 Japan, Memorial on Jurisdiction, vol. 1, para. 165. 207 Ibid., para. 166. 208 Art. 300 provides as follows:

“States Parties shall fulfil in good faith the obligations assumed under this Convention and shall execute the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.”

Japan apparently interprets the relevant provisions of UNCLOS such that they impose no obligations upon States acting in good faith and not abusively.

209 Japan, Memorial on Jurisdiction, vol. 1, para. 168.

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substantive articles referred to in paragraph 69 of the Statements of Claim. It is not,

therefore, clear what point Japan is trying to make by its references to good faith.210

182. A/NZ do not accuse Japan of some independent breach of an obligation to act

in good faith. Nor do they need to do this to sustain the alleged breaches of UNCLOS.

Accordingly the question whether bad faith is alleged or can be proved is irrelevant at this

stage. It is an issue to be considered in light of all the evidence at the appropriate time.

The suggestion that proof of bad faith is a necessary element of establishing the breach of

the relevant provisions of UNCLOS (a suggestion which A/NZ do not accept) provides no

separate ground for this Tribunal declining to consider the merits.211

183. This is confirmed when one examines the principal ground relied on by Japan

for raising the issue of “bad faith”. This appears to be that the discharge of the relevant

UNCLOS obligations invoked by A/NZ depends on national decisions in relation to which

States have a measure of discretion or margin of appreciation. To attack such national

decisions, says Japan, necessarily involves an attack on the good faith of the State making

the decision.212 Again this assertion simply demonstrates the clear link between this issue

and the merits of the claims by A/NZ. The “standard of review” that applies to a State’s

UNCLOS obligations concerning high seas fishing of a highly migratory species is a matter

that can only be considered in relation to the precise content and meaning of the

obligations. That is an issue for the merits.

184. It is noted that Japan no longer appears to accuse A/NZ of themselves

bringing the proceedings in bad faith, a claim made at the interim measures phase and

evidently discounted by ITLOS. A/NZ welcome this change.

(5) The alleged absence of a prima facie case

210 Article 300 is also referred to in the Statements of Claim at paras. 37, 51. 211 Cf. Phosphate Lands in Nauru case, ICJ Reps 1992 p. 240 at p.255 (para 37). 212 Japan, Memorial on Jurisdiction, vol. 1, para. 165.

83

185. Japan further argues that the claim that it has violated Article 116 is “not even

prima facie sustainable”,213 and again that the A/NZ Statements of Claim put forward “no

evidence which could support a claim that Japan has acted in violation of its duties under

UNCLOS”.214 But this is to misunderstand the function of a Statement of Claim. It is not

its function to include the evidence in support of a claim, but to set out the legal grounds

on which the claim is based.215 This the Statements of Claim do, and no more is

required.216

186. In the circumstances of a long-running dispute between responsible

governments, the allegation that there is no prima facie case is little more than a pleading

device, whose effect is to show — again — that there is a disagreement as to the

interpretation and application of key provisions of UNCLOS. The allegation provides no

basis for the Tribunal to determine that it has no jurisdiction over the dispute as such.

187. It is relevant, however, to point out that UNCLOS contains a specific

procedure to filter out abusive claims. Article 294, which is entitled “Preliminary

Proceedings”, provides as follows:

“1. A court or tribunal provided for in article 287 to which an application is made in respect of a dispute referred to in article 297 shall determine at the request of a party, or may determine proprio motu, whether the claim constitutes an abuse of legal process or whether prima facie it is well founded. If the court or tribunal determines that the claim constitutes an abuse of legal process or is prima facie unfounded, it shall take no further action in the case. 2. Upon receipt of the application, the court or tribunal shall immediately notify the other party or parties of the application, and shall fix a reasonable time-limit within which they may request it to make a determination in accordance with paragraph 1.

213 Ibid., para. 167. 214 Ibid., para. 169 (emphasis in original). 215 Statements of Claim, paras. 46-50. 216 A/NZ did however produce expert and other evidence of its case in the Provisional Measures phase:

see the ITLOS Order.

84

3. Nothing in this article affects the right of any party to a dispute to make preliminary objections in accordance with the applicable rules of procedure.”

Article 294 (3) distinguishes between an application to determine that a claim is abusive

(which in common law parlance would be called a strike-out application) and ordinary

preliminary objections. Evidently it was assumed that in the case of an abusive

proceeding, an application would be made under Article 294 forthwith, without prejudice

to any subsequent objection to jurisdiction. Japan has not sought to make such an

application. Its Memorial on Jurisdiction makes no reference to Article 294. Under these

circumstances the various points made by Japan in Part XIV of its Memorial on

Jurisdiction can be left for response in an orderly and regular manner, at the stage of the

merits.

85

CHAPTER 5. CONCLUSION AND SUBMISSIONS

188. This case raises in a central way the question of the effectiveness of the dispute

settlement system established by Part XV of UNCLOS. That this system was intended to

be effective is clear, not only from its title (“Compulsory Procedures entailing Binding

Decisions”) but from numerous statements made during the course of the negotiations

leading to Part XV.217 Thus in a document introducing in 1976 the dispute settlement

section of the “Single Negotiating Text” — by which stage Part XV was already in

recognisable form — the President of the Conference said that:

“[T]he provision of effective dispute settlement procedures is essential for stabilizing and maintaining the compromises necessary for the attainment of agreement on a convention. Dispute settlement procedures will be the pivot upon which the delicate equilibrium of the compromise must be balanced. Otherwise the compromise will disintegrate rapidly and permanently... Effective dispute settlement would also be the guarantee that the substance and intention within the legislative language of a treaty will be interpreted both consistently and equitably.”218

189. Similar views were expressed by Japan, which was concerned that the balance

between the rights of coastal and distant-water fishing States in the EEZ would be

undermined, in favour of coastal States, without an adequate system of dispute settlement.

For example at the second session of the Third Law of the Sea Conference in Caracas

from 20 June-29 to August 1974, Japan said that it:

“...attached great importance to the establishment of a satisfactory procedure for compulsory settlement of any disputes which might arise out of the interpretation or application of the new convention. The duty of States to submit such disputes either to arbitration or judicial settlement should be clearly formulated in order to ensure that the newly established regime would be interpreted and applied uniformly and in a fair and just

217 On the evolution of Part XV see generally A.O. Adede, The System for Settlement of Disputes

under the United Nations Convention on the Law of the Sea (Martinus Nijhoff, Dordrecht, The Netherlands, 1987).

218 A/CONF.62/WP.9/Add.1, para. 6.

86

manner around the world. The International Court of Justice should naturally have a major role in that respect, but in view of the diverse and often technical nature of the problems of the sea, there might be a need to establish special tribunals or commissions to which States would be obliged to submit disputes and whose decisions would be binding on the parties to a dispute.”219

Again at the fourth session in New York from 15 March to 7 May 1976, Japan’s

representative stated that:

“Agreement on a compulsory dispute settlement procedure must be an essential element in an over-all solution of the major issues in the current negotiations. That was all the more necessary since the new legal instrument would have to strike a delicate balance between the rights, obligations and interests of States within the framework of a wider jurisdiction of coastal States than had previously been recognized. His delegation therefore had certain apprehensions that disputes might arise more frequently than had been the case in the past.”220

190. Yet if Japan is right in the present case, a State or States can evade the dispute

settlement system established by Part XV in the following simple way. All that is

necessary is to establish an “implementation agreement” for an aspect of the law of the sea

such as high seas fisheries, with a purely facultative provision for resolution of disputes

and a requirement of unanimity or consensus for substantive decisions. Then the State

concerned vetoes a decision on some question on which cooperation is required under

UNCLOS (e.g. as to exploitation of a highly migratory species). Then it argues that the

resulting impasse arises exclusively under the implementation agreement, so that Part XV

is excluded. In the meantime it makes its own unilateral decisions as to what to fish, and

where. If that result is correct (and it is the result for which Japan argues before this

Tribunal), then Part XV would have been entitled more correctly ‘Optional Procedures

entailing Non-binding Outcomes’.

* * *

219 I Official Records 182. 220 V Official Records 27.

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191. For all the reasons given above, which they reserve the right to supplement in

the course of the Tribunal’s proceedings, A/NZ conclude that the Japanese preliminary

objections, to the extent that they relate to the jurisdiction of the Tribunal or the

admissibility of the claim, are without merit and should be rejected. To the extent that

they relate to matters properly within the Tribunal’s jurisdiction, they should be reserved

to the merits.

Submission

192. Having regard to all the foregoing, the Governments of Australia and New

Zealand request that the Tribunal declare that it has jurisdiction over the claims in the

present proceedings, and that they are admissible.

W.M. Campbell Tim Caughley Agent for the Government of Australia Agent for the Government of New Zealand

31 March 2000

88

APPENDIX

Response to Certain Factual Assertions

in Japan’s Memorial on Jurisdiction

Introduction

A1. The Statement of Facts contained in Part Two of Japan’s Memorial on

Jurisdiction221 chronicles negotiations that have occurred between the parties on

experimental fishing between 1994 and 1998. Japan claims that its description of events is

largely uncontroversial. A/NZ do not agree. Japan’s account is selective, contains

numerous factual inaccuracies and generally provides an unbalanced account of the events

that occurred. Put simply, A/NZ do not accept the version of events advanced by Japan.

A2. Therefore, it is necessary even at this preliminary stage to summarise the A/NZ

view of the facts. In so doing, this Appendix addresses some — by no means all — of the

errors and inaccuracies contained in Japan’s Statement of Facts. Of course, the factual

issues raised by Japan are issues for the merits. A/NZ reserve their rights to submit further

information on these issues at that stage.

Southern Bluefin Tuna (SBT)

A3. SBT is a valuable, highly migratory species of pelagic fish that is included in the list

of highly migratory species in Annex I to UNCLOS. SBT has a broad distribution across

the temperate oceans of the Southern Hemisphere. SBT range widely across the high seas

regions of the Southern Hemisphere but also traverse the exclusive economic zones and

territorial seas of countries including Australia and New Zealand, but not Japan.

A4. It is generally accepted that the global population of SBT comprises a single stock,

with a single spawning ground in waters south of Indonesia between approximately 7oS

89

and 20oS. A large part of the spawning ground falls within the EEZs of Indonesia and

Australia.

A5. While there is uncertainty regarding the mean age of maturity for SBT, it appears

to be not less than 10-12 years and may be older. The average age of fish currently caught

on the spawning grounds is more than 20 years, and the fish can live to 40 years or more.

As a long-lived species with a lengthy pre-maturity period and virtually life-long exposure

to fishing pressure, the stock is slow to recover from depletion relative to other shorter-

lived species, including most other species of tuna.

Summary of SBT catch history and its effect on the stock

A6. Fishing for SBT occurs by a number of methods including longlining, trolling,

purse-seine and pole and line. Japan has fished for SBT using the longlining method and

targets larger/older fish, including those of spawning age. Nevertheless, it does also catch

juvenile fish. By contrast, Australia’s SBT fishery is primarily a surface fishery almost

exclusively within its EEZ, utilising a variety of fishing methods. Only one of these

methods (purse-seine) involves the use of nets. All but a small proportion of all SBT catch

is imported into Japan.

A7. Significant commercial harvesting of SBT began in the early 1950s. In 1961, the

global SBT catch peaked at over 81,000 tonnes. By the early 1980s, the SBT stock had

been severely overfished, with estimates of the parental biomass showing a significant

decline to 25-35% of its 1960 level. In response to this decline, Australia and New

Zealand were the first States to introduce limits on their domestic catches, beginning in

1983. This involved substantial cuts to the Australian fishery. In 1985, Japan joined

A/NZ in setting a global total allowable catch (TAC) for SBT and national allocations

under a voluntary, trilateral arrangement.222

221 Japan, Memorial on Jurisdiction, vol. 1, paras. 15-96. 222 The quota reductions noted by Japan in its Memorial on Jurisdiction, vol. 1, para. 19 are

misleading and illusory. This is because Japan’s early quotas were substantially above the level of catch actually taken by its vessels. It was not until 1989 that the Japanese catch limit became restrictive of Japan’s fishing effort.

90

A8. In 1989, a substantial reduction in the TAC to 11,750 tonnes was agreed, with

national allocations of 6,065 tonnes, 5,265 tonnes and 420 tonnes to Japan, Australia and

New Zealand respectively. Despite this large reduction, the parental biomass continued to

decline and in 1997 was estimated to be at historically low levels in the order of 7-15% of

its 1960 level. Corresponding to the drastic decline in the parental biomass, recruitment

has declined markedly from the late 1960s to the mid-1990s. In 1998, both the Scientific

Committee established under the 1993 Convention, and the Stock Assessment Group

established by the Commission for the Conservation of Southern Bluefin Tuna (“the

Commission”) concluded that recent recruitment was around one third of the 1960 level.

A9. The long and continuous history of intensive fishing of the SBT stock has resulted

in a population that is significantly recruitment overfished and is below commonly

accepted thresholds for biologically safe parental biomass. Below such thresholds, the risk

of poor recruitment will increase. The greatest concern is that natural environmental

variability could combine with the vulnerable state of the resource to cause abrupt

recruitment decline and a subsequent further decline in the parental biomass. The

Scientific Committee has repeatedly stressed (including at its most recent meeting) that the

continued low abundance of the parental biomass is cause for serious biological

concern.223

A10. There is no a priori optimal mixture of fish ages for harvesting in order to maintain

appropriate levels of parental biomass. However, in terms of the overall impacts of fishing

practices upon the fishery, Japan’s current catch composition has a greater impact upon

recruitment in the short to mid-term than Australia’s. This is because the number of

recruits in the SBT population tends to be related to the size of the spawning stock. By

targeting older individuals, Japan’s catch has immediate impacts on the size of the parental

biomass of SBT. These short-term impacts upon parental biomass lower the prospects for

the recovery of the SBT stock.224

223 Report of the first meeting of the Scientific Committee of the Commission for the Conservation of

Southern Bluefin Tuna, 10-19 July 1995, para. 17. See also Report of the Fourth Meeting of the Scientific Committee 3-6 August 1998, p. 7.

224 In this respect the assertions made and conclusions drawn by Japan in its Memorial on

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A11. There are a number of internationally recognised biological reference points that

indicate whether a stock is being overfished. The principle behind all of these reference

points is that they indicate a state for the stock and/or level of fishing which should be

avoided. Caution (the precautionary approach) dictates that restraint be exercised before

these reference points are reached. For SBT, the current stock level is estimated to be

below biologically safe levels.

Establishment of the Commission for the Conservation of Southern Bluefin Tuna

A12. Following the entry into force of the 1993 Convention, arrangements between the

three parties for the conservation and management of SBT have been determined by the

Commission established under Article 6 of that Convention. Article 9 of the 1993

Convention provides for the Scientific Committee to report about the status of the SBT

stock to the Commission and to make recommendations by consensus to the Commission

on the conservation, management and optimum utilisation of SBT. The Commission, of

which all three parties are members, decides upon a TAC on the basis of consensus

requiring agreement of all the parties. On the same basis it distributes the TAC by national

allocations among the member States. In making its recommendations the Scientific

Committee takes into account the impact of non-party catches of SBT.

A13. In May 1994, the Commission set a TAC of 11,750 tonnes, with national

allocations of 6,065 tonnes, 5,265 tonnes and 420 tonnes to Japan, Australia and New

Zealand respectively. Since then, there has been no agreement to change the TAC from

that level. Until 1998 and in the absence of a decision by the Commission setting a TAC,

there had been acceptance by the parties to continue to adhere to previously agreed quota

levels.225 This changed in 1998, when Japan commenced its unilateral experimental

Jurisdiction, vol. 1, para. 18 are misleading.

225 Japan asserts (ibid., para. 53) that its continued agreement to a TAC of 11,750 tonnes was secured by threats to exclude its fishing vessels from Australian ports and from fishing for tuna in the Australian EEZ. Australia took the view, in light of its undoubted right to determine access by foreign fishing vessels to its EEZ, that a TAC should be set first and that bilateral access negotiations would follow. Port entry was also dealt with in those bilateral negotiations. Australia respects the rules of international law relating to vessels in distress and has always allowed Japanese fishing vessels into its ports in those circumstances. In fact Japanese proposals for increased TAC (which would have involved an increase of more than 50% in a number of years)

92

fishing.

A14. In the light of the severely depleted state of the stock, the accepted rebuilding

objective of the Commission is to restore the parental biomass of SBT to its 1980 level by

the year 2020. However, there is clear disagreement as to the prospect of the stock

recovering to the 1980 level by 2020 under current catch levels.

A15. Stock projections into the future based on mathematical models are used to

estimate the probability of the SBT stock recovery. In the case of SBT, past projections

for recovery have been over-optimistic. For example, Japan in 1995 estimated with near

certainty that the stock would recover in four years. This has not occurred. Yet Japan

continues to make similar optimistic and unrealistic projections and has asked the

Commission to increase the TAC based on these predictions. A/NZ have developed

procedures to address the problems inherent in Japan’s projection and assessment models.

However, Japan has been unwilling to adopt these procedures or suggest viable

alternatives.

A16. For the past few years, A/NZ have differed with Japan over the appropriate TAC

that can be prescribed while still allowing the rebuilding objective to be realised. Japan

takes the view on the basis of its stock projections that the TAC should be increased.

were irresponsible as they took no proper account of the depleted state of the stock.

93

A/NZ believe that continued catch restraint is necessary to allow recovery of the SBT

stock.

A17. Despite the fact that there is scientific agreement that the SBT stock remains a

cause for serious biological concern, Japan unilaterally increased its take of SBT by

commencing experimental fishing in 1998 and again in 1999. This unilateral action occurs

against the background of significant increases in catches by non-parties to the 1993

Convention in the last several years. All three parties have recognised the increased threat

of these non-party catches to the SBT stock. In the face of increased catches by non-

parties, Japan’s unilateral experimental fishing further compounds the risk and threats to

the stock, and encourages third States to act in a similar irresponsible manner.

History of discussions on experimental fishing

(a) Consideration of experimental fishing by the Commission

A18. For several years, the parties have been discussing means to enhance the

understanding of the SBT stock and of reducing uncertainty as to the state of the stock.226

A/NZ have developed an integrated program of scientific research to address these issues.

A19. On the other hand, Japan has had a single-minded focus on the conduct of

experimental fishing programs which in themselves involve large catches posing substantial

risk to the SBT stock. Those Japanese experimental fishing programs are not able to

resolve the differences among the parties about stock recovery and appropriate TAC

levels.

A20. An experimental fishing program can be defined as a program which allows for

short-term additional catches to be taken from a stock in a controlled manner so as to

226 One program undertaken by the Parties was the Real Time Monitoring Program (RTMP). The

RTMP was not an experimental fishing program and was always conducted within agreed TAC. It was designed to improve the monitoring of catch and effort data from Japanese vessels and was facilitated by Australian fishers providing quota on a commercial basis. In part, the program was terminated for commercial reasons. However, at that time, quota was no longer needed for maintaining the monitoring objectives as the improved monitoring has continued and been expanded to include the whole Japanese longline fleet. There is no substance to the criticism of

94

provide additional information that can improve the management of the stock. A/NZ have

stated consistently that a well designed and implemented experimental fishing program

could assist in resolving some of the uncertainties in the stock assessment. However, it

also is the consistent position of A/NZ that an EFP should be considered as only one

possible element in a broader scientific program which would focus on improving the basis

for managing the stock. A/NZ maintain that any proposals for experimental fishing should

be assessed to ensure that the benefits of such experimentation clearly outweigh the risks

to an already severely depleted stock. In stark contrast, Japan has pressed relentlessly for

the implementation of its experimental fishing proposals on its own terms and without

proper evaluation.

A21. The issue of experimental fishing was first discussed in detail in 1995, when Japan

formally sought an increase in the TAC of 6,000 tonnes. In so doing, Japan chose to

ignore the warning by the Scientific Committee that the continued low abundance of SBT

parental biomass was cause for serious biological concern.227 In the face of Japanese

pressure to increase the TAC, A/NZ agreed to a special meeting in October 1995 to

discuss the issue.228 At that meeting, Japan again sought an increase in the TAC of 6,000

tonnes or, as an alternative, agreement by the Commission to an experimental fishing

quota of 6,000 tonnes to be fished annually over a period of at least three years.229 No

objective scientific basis was provided by Japan for the magnitude of the increase in the

TAC or for the tonnage sought for experimental fishing, nor were objectives and

specifications for the experimental fishing quota identified in any detail. This pattern of

Japan seeking large increases in catch either in the form of an increased TAC or in the

form of experimental fishing continued for a number of years. A/NZ would not agree to

such increases because of the depleted state of the stock and the poor design of the

programs proposed by Japan.

Australia in Japan’s Memorial on Jurisdiction, vol. 1, paras. 51-52.

227 Report of the first meeting of the Scientific Committee of the Commission, Shimizu-shi, Japan, 10-19 July 1995, para. 17.

228 Report of the Second Meeting of the Commission for the Conservation of Southern Bluefin Tuna, Tokyo, 12-15 September 1995, p.1.

229 Report of the Special Meeting of the Commission for the Conservation of Southern Bluefin Tuna 3-6 October 1995, p. 1.

95

A22. A summary of Japan’s various demands for increases in the TAC and for additional

quota for the purposes of experimental fishing made since 1994 is set out in the following

Table.

Table 1

Summary of Japan’s proposals for TAC increases

and additional quota for experimental fishing

Year

Proposal for annual

increase to TAC

Proposal for annual

increases in quota for EFP

% increase over the TAC as a result of

EFP

% increase over Japan’s national

allocation as a result of EFP

1995

6,000 tonnes

6,000 tonnes

51.1%

98.9%

1996

6,000 tonnes 3,000 tonnes

6,000 tonnes 1,500 tonnes

51.1% 12.8%

98.9% 24.7%

1997

3,000 tonnes

2,010 tonnes

17.1%

33.2%

1998

3,000 tonnes

2,010 tonnes Japan conducts unilateral EFP taking 1,464 tonnes

17.1% 12.5%

33.2% 24.1%

1999

3,000 tonnes

Japan conducts unilateral EFP taking 2,198 tonnes

18.7%

36.2%

A23. Nevertheless, A/NZ did agree to explore the concept of experimental fishing and

proposed collaborative scientific work be done on experimental design. A/NZ also

devoted considerable scientific resources to the EFP issue since it was first raised.

A24. In May 1996 the Commission agreed on criteria against which proposals for

experimental fishing should be judged. Those criteria, comprising a set of objectives and

principles for the design and implementation of an EFP (the 1996 Objectives and

Principles)230 directed, inter alia, that any EFP adopted by the Commission should be the

230 Dossier, vol 1, Nos. 3.2, 4.3.

96

product of collaboration between the parties (paragraph 2), should not jeopardise the

potential recovery of the parental SBT stock to the 1980 level by 2020 (paragraph 4), and

should be designed to deliver scientifically valid and meaningful results (paragraph 5). The

Parties also agreed on a 3-step process and timetable for the evaluation of experimental

fishing proposals.231

A25. Japan alleges that A/NZ scientists have prevented consideration of an EFP.232 It is

clear from the records of the meeting, however, that A/NZ scientists made every effort to

develop an EFP which was consistent with the 1996 Objectives and Principles. It was

Japan that consistently failed to embrace the 3-step process. It wanted the Commission to

adopt an EFP without having completed the evaluation process and without having

adequately considered how the results would be used in the management context.

A26. Japan alleges also that a request to discuss its proposed pilot program in the

Scientific Committee in September 1996 was simply rejected. Again, that is not correct.233

A27. In February 1998, Japan indicated that in the coming year it would fish

commercially at the level of national allocation fixed for its most recent fishing year

(March 1997 to February 1998) and that it would take an additional 2,010 tonnes of SBT

annually for three years, for the purposes of a unilateral EFP. Between March and June

1998, talks were held between the three parties, but these failed to resolve the differences

over the Japanese proposal for an EFP, which had not been agreed by the Commission.

A28. On 1 June 1998, Japan made a revised proposal for a pilot EFP of 1,400 tonnes

231 Agreed Timetable for Evaluation and Development of an Experimental Fishing Program.

Attachment E, Report of the Second Special Meeting of the Commission for the Conservation of Southern Bluefin Tuna Canberra, 29 April-3 May 1996: Dossier, vol. 1, No. 4.3.

232 Japan, Memorial on Jurisdiction, vol. 1, para. 57. 233 The Report of the 1996 Scientific Committee Meeting clearly records that an analysis of Japan’s

proposal was carried out by the Scientific Committee. This consisted of stock projections to examine the effects on the recovery of the stock of possible experimental fishing under various catch scenarios. On the basis of those projections, Australia and New Zealand considered that an EFP of the order proposed by Japan could result in substantial harm to the stock. Further consideration of Japan’s proposal was delayed by disagreement over Japan’s insistence that the Scientific Committee depart from long standing procedure and give very high priority to Japan’s proposed EFP. This delay would not have occurred had Japan respected past practices and the work plan specifically set down for the Scientific Committee by the Commission.

97

which was to commence on 1 July that year, to precede its three-year programme. A/NZ

formally expressed the views that the proposal was unacceptable by reference to the

agreed criteria, and requested Japan not to commence the EFP. Despite those requests,

Japan conducted a unilateral EFP in the southern Indian Ocean from 10 July 1998 to 31

August 1998, under which Japan took an additional 1,464 tonnes of SBT over and above

its previously agreed national allocation. Japan’s 1998 unilateral EFP represented a 12.5%

increase in the catches of SBT above the last agreed TAC of 11,750 tonnes and 24.1 %

above Japan’s last national allocation.

A29. It was in response to Japan’s initiation of a unilateral program in 1998 that A/NZ

formally requested urgent consultations and negotiations. In the course of the

Negotiations in December 1998 the parties agreed to establish an Experimental Fishing

Program Working Group (EFPWG) to work towards developing a joint experimental

fishing program.

(b) Consideration of experimental fishing by the EFPWG

A30. From February to May 1999, the EFPWG met four times. The terms of reference

for the working group emphasised the importance of collaboration in the development a

new, future joint EFP. To that end, the terms of reference required that account be taken

of the 1996 Objectives and Principles, issues papers describing approaches to reduce

uncertainties in the SBT stock assessment and proposals forward by the parties.

98

A31. Despite intensive efforts by A/NZ to reach agreement on a joint programme of

experimental fishing within this framework, agreement was not reached between the

parties. A/NZ’s approach to the Working Group was to work collaboratively to develop a

joint proposal. A/NZ went into the process with an open mind. They developed a number

of proposals in an effort to ensure that the most meaningful proposal could be identified

and developed.

A32. An essential part of the process was the need to agree on decision rules.

Substantial progress was made on this matter up until the end of the third meeting, held in

Australia on 22-25 March 1999. However, at the end of that meeting Japan attempted to

extricate itself from matters it had agreed at earlier meetings. It did so by refusing to

adopt a report on decision rules from a subgroup of which it had been a member.

A33. The final meeting of the EFPWG took place in Japan on 12-15 April 1999. Japan

notes that at that meeting A/NZ did not endorse the decision rules prepared by external

scientists who were members of the Working Group.234 A/NZ could not have agreed to

“proposed decision rules” as the paper put forward by the external scientists did not in fact

contain specific decision rules. What they suggested was a “meta-decision rule” which

could be used in situations “in which the Commission would wish to use EFP results

before decision rules have been agreed upon”. This proposal was unacceptable.

A34. The final meeting of the EFPWG was dominated by yet another proposal by Japan

for an EFP, described by it as a “final proposal”. Like those before it, it did not satisfy the

essential elements for a joint EFP. It was accompanied by papers setting out the

objectives of the proposal and views by Japanese industry which made it clear that the EFP

was designed to deliver a profit to Japanese fishers rather than scientifically meaningful

results. In the hope of securing a compromise, Australia put forward proposals for a

tagging program and a CPUE component. These were both rejected outright by Japan.

A35. In retrospect, it is clear that Japan had only participated in the EFPWG with the

234 Japan, Memorial on Jurisdiction, vol. 1, para. 81.

99

objective of implementing an EFP on Japan’s own terms and similar to the program that it

conducted unilaterally in 1998.

The 1999 unilateral experimental fishing program

A36. Following the unsuccessful conclusion of the EFPWG process, the parties

participated in a series of meetings during April and May 1999. At these meeting A/NZ

went to great lengths to reach a compromise with Japan. Japan however steadfastly

refused to modify its predetermined program of experimental fishing. In late May, Japan

delivered an ultimatum. It advised that unless A/NZ accepted a joint experimental fishing

program for 1999 involving a catch of 1,800 tonnes ± 20%, it would recommence its own

unilateral program on 1 June 1999 of 2,000 tonnes ± 20%. Japan made clear that in either

case there would be no upper limit on catch: the maximum figure was an estimate but not

a constraint.

A37. Despite protests by A/NZ, Japan gave effect to its ultimatum and initiated its

experimental fishing in June 1999. Under it, Japan admits to taking an additional 2,198

tonnes of SBT over and above its previously agreed national allocation. The 1999

unilateral experimental fishing represented an increase of 18.7% above the last agreed

TAC and 36.2 % above Japan’s last national allocation.

A38. By way of conclusion, the reasons why A/NZ was unable to accept Japan’s 1998

and 1999 unilateral experimental fishing proposals involving an increase above the last

agreed TAC are as follows:

(a) A/NZ considers that neither the 1998 nor 1999 proposals satisfied the agreed 1996

Objectives and Principles;

(b) Japan’s unilateral experimental fishing is misdirected relative to resolving the

differences over the prospect of recovery under current catches;

(c) the experimental design and analysis are fundamentally flawed; and

(d) Japan has also not provided adequate mechanisms to ensure the scientific validity

100

of the data provided by its vessels carrying out the experimental fishing.

Thus, the objectives and design of the experiments clearly do not justify the significant

increased risk to the stock, especially when other mechanisms for reducing uncertainty

were available that would require little or no additional catch.

A39. This short summary of the facts illustrates that A/NZ have been proactive in

seeking the sound management of SBT. In contrast, Japan has single-mindedly pursued

the goal of increased catches either through increase in TAC or under the guise of an EFP.

In so doing, Japan has increased the risk to the SBT stock in circumstances where there is

scientific agreement that the continued low abundance of the SBT parental biomass is

cause for serious biological concern.

SOUTHERN BLUEFIN TUNA CASES

Australia and New Zealand v. Japan

Reply on Jurisdiction

Australia and New Zealand

Volume II

Annexes

31 March 2000

Index of Annexes to A/NZ Reply on Jurisdiction

Diplomatic Correspondence–History of the Dispute

NO.

SOURCE

DATE

TITLE

1 New Zealand

14/7/98 Diplomatic Note to Japan

2 Australia

31/8/98 Diplomatic Note No. LGB 98/318 to Japan

3 New Zealand

31/8/98 Diplomatic Note to Japan

4 Japan

9/9/98 Note Verbale No. 98-089 to Australia

5 Japan

9/9/98 Diplomatic Note 162 to New Zealand

6 New Zealand

10/9/98 Diplomatic Note No. 40/12/10/3 to Japan

7 Australia

11/9/98 Diplomatic Note No. LEGAL 98/365 to Japan

8 Japan

30/9/98 Non-Paper to New Zealand

9 New Zealand

30/9/98 Aide Memoire to Japan

10 New Zealand

1/10/98 Aide Memoire to Japan

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11 A/NZ 2/12/98 Joint A/NZ Legal Statement to Japan

12 New Zealand 28/5/99 Aide Memoire to Japan

13 Australia 31/5/99 Diplomatic Note No. 99/158 to Japan

14 Japan 1/6/99 Note Verbale No. 99-040 to Australia

15 Japan 4/6/99 Diplomatic Note 73 to New Zealand

16 Australia 7/6/99 Diplomatic Note No. LGB 99/198 to Japan

17 New Zealand 8/6/99 Diplomatic Note to Japan

18 Japan 15/6/99 Note Verbale No. 99-045 to Australia

19 Japan 16/6/99 Diplomatic Note 78 to New Zealand

20 Japan 17/6/99 Note Verbale No. 99-046 to Australia

21 Australia 21/6/99 Diplomatic Note No. NEB 99/35 to Japan

22 Japan 23/6/99 Note Verbale No. 99-049 to Australia

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23 Australia 23/6/99 Diplomatic Note No. LGB 99/223 to Japan

24 Japan

24/6/99 Note Verbale No. 83 to New Zealand

25 New Zealand 24/6/99 Diplomatic Note to Japan

26 Australia 29/6/99 Diplomatic Note No. LGB 99/227 to Japan

27 New Zealand

30/6/99 Diplomatic Note to Japan

28 Japan 2/7/99 Note Verbale No. 99-056 to Australia

29 Japan 2/7/99 Diplomatic Note 88 to New Zealand

30 Japan 9/7/99 Note Verbale No. 99-058 to Australia

31 Japan 9/7/99 Diplomatic Note 89 to New Zealand

32 Japan 14/7/99 Diplomatic Note 91 to New Zealand

33 Japan 14/7/99 Note Verbale No. 99-059 to Australia

34 Australia 15/7/99 Diplomatic Note No. LGB 99/258 to Japan

35 New Zealand 15/7/99 Diplomatic Note to Japan

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5

Meeting Records

36 A/NZ and Japan 9/11/98 Record of Consultations under Article 16(1) of the Convention for the Conservation of Southern Bluefin Tuna

37 A/NZ and Japan 23/12/98 Record of Discussions. Negotiations Under Article 16(1) of the Convention for the Conservation of Southern Bluefin Tuna in Relation to the Dispute Notified Among the Parties Relating to Japan;s Experimental Fishing Program

Travaux préparatoires of the 1993 Convention and associated documents

38 A/NZ and Japan June 1984 Draft Summary Record of Discussions, Southern Bluefin Tuna Consultations among Japan, New Zealand and Australia, Canberra, 29 May 1984 - 1 June 1984

39 A/NZ and Japan September 1988 Summary Record of Second Meeting of Trilateral Working Group on Possible Institutional Arrangements for the International Management of Southern Bluefin Tuna (Attachments not reproduced)

40 A/NZ and Japan September 1989 Report of Fourth Meeting of the Working Group on a Possible Institutional Arrangement for the Conservation of Southern Bluefin Tuna, extracted from Southern Bluefin Tuna Trilateral Management Discussions Eighth Meeting, 18-21 September 1989, Summary Record (remainder not reproduced)

41 Japan 9/7/92 Facsimile transmission from K. Nakahara, Embassy of Japan, Canberra to A. Carayanides, Department of Foreign Affairs and Trade, Australia

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42 A/NZ and Japan 13/8/92 Convention for the Conservation of Southern Bluefin Tuna (Draft)

43 A/NZ and Japan November 1993 Record of Southern Bluefin Tuna Trilateral Management Discussions, Canberra, October-November 1993 (pages 11 to 26 inclusive, being Attachments B and C, not reproduced)

44 New Zealand 6/4/94 Draft Text of Joint Diplomatic Démarche to Indonesia/Korea and Letter to Taiwan

45 Japan 5/8/94 Facsimile transmission from Mr Shingo Ota, Assistant Director, International Affairs Division, Fisheries Agency, Japan to Ms Mary Harwood, Assistant Secretary, Fisheries Policy Branch, Energy and Fisheries Division, Department of Primary Industries and Energy, Australia

Note re Annexes 39 and 40: it was the practice of delegations at successive trilateral meetings to prepare a joint “Draft Summary Record” at the end of each meeting for later confirmation through diplomatic channels. There is no documentary evidence that any changes were subsequently made as part of that process, or indeed that the process took place at all; passages in the record of the 1989 and 1990 meetings suggest that it did not, and that confirmation of the record of any trilateral management meeting would take place if at all at the next such meeting. The documents should therefore be regarded as final for present purposes despite their title.