DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
LUCKNOW

Academic Session: 2018-19

PUBLIC INTERNATIONAL LAW
CASE SUMMARY OF SOUTHERN BLUEFIN TUNA CASE

UNDER THE GUIDANCE OF: SUBMITTED BY:

Mr. Manvendra Kumar Tiwari AJAY KHEDAR

ASSISTANT PROFESSOR (PIL) ROLL NO: 10

DR. RAM MANOHAR LOHIYA SECTION: ‘A’

NATIONAL LAW UNIVERSITY B.A. LLB (Hons.), SEMESTER-IV

SIGNATURE OF PROFESSOR SIGNATURE OF STUDENT

INDEX

INTRODUCTION…………………………………………………………………..

HISTORY OF DISPUTE…………………………………………………………….

PROVISIONS INVOKED BY AUS AND NZ………………………………………….

CHALLENGES OF JAPAN …………………………………………………………

JURISDICTION AS AN ISSUE……………………………………………………….

JAPAN’S POSITION ON LACK OF JURISDICTION……………………………….

GROUNDS FOR CHALLENGING INADMISSIBILITY FROM JAPAN……………….

AUS AND NZ ON JURISDICTION AND ADMISSIBILITY………………………...

FINAL SUBMISSIONS OF PARTIES………………………………………………….

JAPAN’S FINAL SUBMISSIONS…………………………………………………

AUS AND NZ FINAL SUBMISSIONS……………………………………………

DECISION ………………………………………………………………………...

CONCLUSION……………………………………………………………………...
INTRODUCTION

Southern Bluefin Tuna (Thunnus maccoyi, hereafter sometimes designated "SBT")

is a migratory species of pelagic fish that is included in the list of highly migratory
species set out in Annex I of the United Nations Convention on the Law of the Sea.
Southern Bluefin Tuna range widely through the oceans of the Southern
Hemisphere, principally the high seas, but they also traverse the exclusive economic
zones and territorial waters of some States, notably Australia, New Zealand and
South Africa. They spawn in the waters south of Indonesia. The main market for the
sale of Southern Bluefin Tuna is in Japan, where the fish is prized as a delicacy for
sashimi. It is common ground between the Parties that commercial harvest of
Southern Bluefin Tuna began in the early 1950s and that, in 1961, the global catch
peaked at 81,000 metric tons ("mt"). By the early 1980s, the SBT stock had been
severely overfished; it was estimated that the parental stock had declined to 23-30%
of its 1960 level. In 1982, Australia, New Zealand and Japan began informally to
manage the catching of SBT. Japan joined with Australia and New Zealand in 1985
to introduce a global total allowable catch (hereafter, "TAC") for SBT, initially set
at 38,650 mt. In 1989, a TAC of 11,750 tons was agreed, with national allocations
of 6,065 tons to Japan, 5,265 tons to Australia and 420 tons to New Zealand; Japan,
as the largest harvester of SBT, sustained the greatest cut. But the SBT stock
continued to decline. In 1997, it was estimated to be in the order of 7-15% of its
1960 level.

In 1993, Australia, Japan and New Zealand concluded the Convention for the
Conservation of Southern Bluefin Tuna (hereafter, the "1993 Convention" or
"CCSBT"). The provisions most pertinent to these proceedings are:

Recalling that Australia, Japan and New Zealand have already taken certain
measures for the conservation and management of southern Bluefin tuna.
 Paying due regard to the rights and obligations of the Parties under relevant
principles of international law.
Noting the adoption of the United Nations Convention on the Law of the Sea in
1982.
Noting that States have established exclusive economic or fishery zones within
which they exercise, in accordance with international law, sovereign rights or
jurisdiction for the purpose of exploring and exploiting, conserving and
managing the living resources.
Recognizing that southern Bluefin tuna is a highly migratory species, which
migrates through such zones.
Recognizing that it is essential that they cooperate to ensure the conservation and
optimum utilization of southern Bluefin tuna.

Under this convention, Article 6 talked about the establishment of a commission in

this matter and the commission will be referred as “the Commission”.

Under article 9, A scientific body was to be established acting as an advisory body

to the commission.

Article 16 talks about the status of disputes and what should be done in case a dispute
is found.

Article 20 talks about withdrawing procedure of parties. It states that if a party is

intending to withdraw the they can withdraw from the convention twelve months
after the date on which their intention was notified.
HISTORY OF DISPUTE

The dispute related to Japan’s unilateral declaration of an ‘experimental fishing

program’, which involved catches of SBT over and above its national allocation
decided by the Commission for the Conservation of Southern Bluefin Tuna (‘the
Commission’). Decisions of the Commission are made by unanimous vote of the
three signatory parties: Australia, Japan and New Zealand. In May 1994, the first
meeting of the Commission set a total allowable catch (‘TAC’) of 11,750 tonnes,
divided into national allocations of 6,065 tonnes to Japan, 5,265 tonnes to Australia
and 420 tonnes to New Zealand. However since 1998, the Commission has been
unable to agree upon a new TAC; the parties thus continue to apply the 1994 TAC.
Disagreement over catch limits is born out of divergent views as to the health of the
SBT stock. Australia and New Zealand believe that catch restraints are necessary to
restore parental stocks to levels that would promote the achievement of the
Commission’s long-term management goal, namely returning the SBT spawning
stock biomass to 1980 levels by the year 2020. Conversely, Japan claims that
available data demonstrates that stocks are recovering from ‘historic lows’ and that
an increase in TAC would still be consistent with management objectives. Japan
commenced a unilateral three-year experimental fishing program in the summer of
1998, in addition to its national allocation. In response, Australia and New Zealand
formally requested urgent consultations under the CCSBT, and subsequently viewed
these consultations as terminated by Japan’s refusal to cease fishing under its
experimental fishing program in 1999. Australia then initiated proceedings under the
UNCLOS dispute settlement provisions, and pending the constitution of an arbitral
tribunal, Australia and New Zealand (‘the applicants’) sought provisional measures
from ITLOS. In sum, the applicants claimed that Japan had breached its obligations
to conserve and manage SBT stock.
PROVISIONS INVOKED BY AUSTRALIA AND NEW ZEALAND

Provisions of UNCLOS centrally invoked by Australia and New Zealand were the
following :

Article 64 (Highly Migratory Species) - 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.
Article 116 (Right to Fish in high seas) - All States have the right for their
nationals to engage in fishing on the high seas subject to:
(a) their treaty obligations
(b) rights and duties as well as the interests of coastal States provided for, inter
alia, in article 63, paragraph 2, and articles 64 to 67
(c) provisions of this section.
Article 117 (Duty of states to adopt with respect to their national measures for
the conservation of living resources of the high seas) : 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 high seas.
Article 118 (Cooperation of states in conservation and management of living
resources) : States shall cooperate with each other in the conservation and
 management of living resources in the areas of the high seas. States whose
nationals exploit identical living resources, or different living resources in the
same area, shall enter into negotiations with a view to taking the measures
necessary for the conservation of the living resources concerned. They shall, as
appropriate, cooperate to establish sub regional or regional fisheries
organizations to this end.
Article 119 (Conservation of living resources of high seas) : In determining the
allowable catch and establishing other conservation measures for the living
resources in the high seas, States shall:

(a) take measures which are designed, on the best scientific evidence available
to the States concerned, 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, including the
special requirements of developing States, and taking into account fishing
patterns, the interdependence of stocks and any generally recommended
international minimum standards, whether subregional, regional or global.
(b) take into consideration the effects on species associated with or dependent
upon harvested species with a view to maintaining or restoring populations of
such associated or dependent species above levels at which their reproduction
may become seriously threatened.

Available scientific information, catch and fishing effort statistics, and other data
relevant to the conservation of fish stocks shall be contributed and exchanged on a
regular basis through competent international organizations, whether sub regional,
regional or global, where appropriate and with participation by all States concerned.
State concerned shall ensure that conservation measures and their implementation
do not discriminate in form or in fact against the fishermen of any State.

CHALLENGES OF JAPAN TO THE ABOVE CONTENTIONS:

challenged the contentions of Australia and New Zealand on the facts and the
law. It contended that it was Australia and New Zealand who had frustrated the
functioning of the CCSBT Commission and regime. It maintained that the
gravamen of the claims asserted concern the 1993 Convention, not UNCLOS,
and that those claims turned not on issues of law but matters of scientific
appreciation.
Article 290(5) of UNCLOS contemplates the imposition of provisional measures
by the International Tribunal for the Law of the Sea ("ITLOS") only if the arbitral
tribunal would have prima facie jurisdiction over the underlying dispute. Article
288(1) of UNCLOS gave an arbitral tribunal jurisdiction over any dispute
concerning the interpretation or application of UNCLOS, a treaty not actually the
basis of the Applicants' claims. The applicants in August 1998 specifically
invoked dispute resolution under the 1993 Convention, not UNCLOS; they had
treated the dispute as one arising under the CCSBT, and sought consultations not
under UNCLOS but under Article 16 of the 1993 Convention.
The procedures under the 1993 Convention had not been exhausted; the Parties
were required to continue to seek resolution of their dispute pursuant to those
procedures. Nor had the procedural conditions for arbitration under UNCLOS
been met. Australia and New Zealand had not attempted to reach a settlement in
good faith, or even exchange views, in accordance with the provisions of
UNCLOS Part XV. No irreparable damage threatened. Article 64 of UNCLOS
merely created an obligation of cooperation, and prescribed no specific principles
of conservation or concrete conservation measures. It was doubtful that the
 precautionary principle had attained the status of a rule of customary international
law. The applicants' actions to thwart settlement under Article 16 of the CCSBT
were "abusive" and "redolent of bad faith."

For all these reasons, Japan argued that the proposed Annex VII arbitral tribunal
lacked jurisdiction prima facie and that hence ITLOS lacked authority to prescribe
provisional measures. The only remedy that made sense, if there were to be any,
would be to call on Australia and New Zealand to resume negotiations under the
1993 Convention with a view to reaching agreement on the TAC, annual quotas, and
the continuation of the EFP on a joint basis, with the assistance of independent
scientific advice. In the event that ITLOS should make a finding of prima facie
jurisdiction, Japan asked for counter-provisional measures prescribing that Australia
and New Zealand urgently and in good faith recommence negotiations with Japan
for a period of six months to reach a consensus on outstanding issues between them,
including a protocol for a continued EFP and the determination of a TAC and
national allocations for the year 2000.

JURISDICTION AS AN ISSUE

Considering that Australia and New Zealand have invoked as the basis of jurisdiction
of the arbitral tribunal article 288, paragraph 1, of the Convention which reads as
follows: A court or tribunal referred to in article 287 shall have jurisdiction over any
dispute concerning the interpretation or application of this Convention which is
submitted to it in accordance with this Part.
JAPAN’S POSITION ON LACK OF JURISDICTION

The core of the dispute lies in disagreement concerning, as the Applicants'

Statement of Claim puts it, "Japan's failure to conserve, and to cooperate in
the conservation of, the SBT stock, as manifested, inter alia, by its unilateral
experimental fishing for SBT in 1998 and 1999". Neither customary
international law nor UNCLOS requires Japan or any other State to proceed
with an EFP only with the agreement of the other two States Parties to the
1993 Convention. Any such obligation can only be derived from the CCSBT
itself. The dispute necessarily is one concerning the interpretation and
implementation of the CCSBT and not a dispute concerning the interpretation
or application of UNCLOS.
While UNCLOS was concluded in 1982 and the CCSBT in 1993, UNCLOS
did not come into force until 1994 and was not ratified by all three of the
Parties to these proceedings until 1996. It follows that the CCSBT alone
regulated relations among Australia, New Zealand and Japan in respect of
SBT for some 26 months. The advent of UNCLOS could not have increased
the density of treaty relations between the Parties in respect of SBT in as
radical a manner as Australia and New Zealand.
The failure of Australia and New Zealand to bring suit against Korea, Taiwan
and Indonesia under UNCLOS suggests that the real dispute at issue is under
the 1993 Convention, to which none of those States are, at any rate, yet, party.
It demonstrates the realization of the Applicants that the CCSBT is the only
effective legal link between them and Japan in relation to SBT.
Article 311 of UNCLOS, concerning its relation to other conventions and
international agreements, is consistent with Japan's analysis.4 The 1993
Convention is compatible with UNCLOS and does not detract from the
 enjoyment of rights thereunder; the 1993 Convention is expressly permitted
by Article 64 of UNCLOS.
Article 282 of UNCLOS gives no nourishment to the Applicants' position,
since the instant dispute concerns not the interpretation or application of
UNCLOS but the interpretation and implementation of the 1993 Convention.

GROUNDS FOR CHALLENGING INADMISSIBILITY FROM JAPAN

Article 16 was fashioned to deal with the kinds of disputes likely to arise
under the 1993 Convention, namely, questions of scientific judgment. Such
questions are not justiciable. While an ad hoc reference to arbitration such as
Japan proposed within the framework of the CCSBT would have permitted
the agreed identification of the precise matters over which the Parties differ,
and the construction of a tribunal and a procedure specially adapted to deal
with such scientific questions, that proposal was immediately rejected by
Australia and New Zealand. The essentially scientific character of the instant
dispute is apparent from the remedies sought. It is also shown by the reasons
cited by Australia and New Zealand for contesting Japan's experimental
fishing program. All turn on matters of scientific, not legal, judgment. There
is no controversy about general conservation duties. The dispute is only over
the accuracy of particular scientific predictions and judgments concerning
SBT. That is why it is not susceptible of legal judgment.
The Applicants' Statement of Claim fails to specify precisely what the case
against Japan is. Its vague and elusive reference to articles of UNCLOS is
insufficient. There is a failure to identify a cause of action.
The dispute is in any event moot. Japan has now accepted a catch limit for
its EFP of 1500 mt. That is the exact figure proposed by Australia in 1999.
 The Applicants' complaints center upon contentions that Japan is taking an
EFP catch above the level of the national quotas agreed in the CCSBT for
1997. But now they are in agreement on what that EFP catch should be, so
the case is moot. Not only has Japan committed itself to observe a limit of
1500 mt. in its EFP for the remaining two experimental fishing programs. It
has undertaken to pay back all excess catches above the 1500 limit. It has also
committed itself to a reduction in catch limits if the results of the EFP show
that a reduction is required to safeguard the SBT stock. Japan, as the largest
fisher and by far the largest consumer of Southern Bluefin Tuna, has the
strongest interest in ensuring the survival of a healthy SBT stock.

AUSTRALIA AND NEW ZEALAND ON JURISDICTION AND

ADMISSIBILITY

The International Tribunal for the Law of the Sea was unanimous in its finding
that this Tribunal has prima facie jurisdiction. The Applicants accept that this
Tribunal is not bound to hold in favor of its jurisdiction over the merits by the
finding of ITLOS concerning jurisdiction prima facie. Yet there was not a
trace of doubt in the reasoning of ITLOS that such prima facie jurisdiction
exists. The conclusion of 22 judges of ITLOS cannot be summarily
disregarded, and their reasoning and holdings are significant in several
respects. ITLOS found that the dispute is not only one of scientific
appreciation: "the differences between the parties also concern points of law".
UNCLOS established a new and comprehensive legal regime for all ocean
space. 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."
As the first President of the Third United Nations Conference on the Law of
the Sea put it, "The 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 must be balanced." That
dispute settlement system is set out in Part XV of the Convention, under which
these proceedings have been brought. Part XV is mandatory and
comprehensive. Section 2 of Part XV is entitled "Compulsory Procedures
Entailing Binding Decisions," and framed so as to "not permit evasion". The
key provision in respect of fisheries is Article 297(3), which specifies that,
"Disputes concerning the interpretation or application of the provisions of this
Convention with regard to fisheries shall be settled in accordance with section
2 ..." with only one exception, concerning the sovereign rights of a coastal
State in its exclusive economic zone.12 That exception is not in point in these
proceedings. Thus UNCLOS seeks to establish "an overarching, mandatory
regime for the 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."
There is a dispute over the interpretation or application of a given treaty if the
actions complained of can reasonably be measured against the standards or
obligations prescribed by that treaty. The International Court of Justice has
repeatedly analyzed the issue by comparing the substance of the dispute with
the terms of the obligations set out in the treaty. It has also held that the fact
that a party did not refer to that treaty in exchanges with another party does
not debar it from invoking the compromissory clause of that treaty before the
Court. That one party maintains that a dispute falls within the scope of the
treaty and the other denies it is not enough to bring the dispute within the
 treaty and its compromissory clause; it is for objective judicial or arbitral
process to determine whether the dispute falls within the provisions of the
treaty. Whether a treaty is applicable may however be a question concerning
its interpretation or application provided that the treaty crosses the threshold
of potential applicability.
Australia and New Zealand invoked provisions of UNCLOS in the course of
the dispute. Their formal notices to Japan of the existence of a legal dispute
on August 31, 1998 cited the 1993 Convention, UNCLOS and customary
international law, including the precautionary principle. Australia's
diplomatic note of September 11, 1998 declared that it was not possible or
ever contemplated that matters concerning the 1993 Convention should be
isolated from related international obligations; indeed those of UNCLOS are
recognized in the preamble to the 1993 Convention. Allegations of Japan's
breach of obligations under UNCLOS recur in the subsequent diplomatic
exchanges.
Article 16 of the CCSBT cannot be viewed as a choice of means under Article
280 of UNCLOS. Properly interpreted, Article 280 refers to an agreement
between parties to "a" dispute, after that dispute has arisen, to settle it by a
peaceful means that they choose. In any event, Article 16 is not an agreement
covering disputes concerning the interpretation or application of UNCLOS.
Even if it were, the preconditions of Article 281 are not met by Article 16. It
does not in terms exclude further recourse to Part XV, an explicit requirement
of Article 281. The precondition cannot be met impliedly and it certainly is
not met expressly by the language of paragraph 2 of Article 16.

FINAL SUBMISSIONS OF PARTIES:

JAPAN: THIS TRIBUNAL SHOULD ADJUDGE AND DECLARE THAT

The case has become moot and should be discontinued.

The tribunal does not have jurisdiction over the claims made by applicants in
this case.
The claims made the opposition parties are not admissible.

AUSTRALIA AND NEW ZEALAND: IN RESPONSE, MADE THE

SUBMISSIONS THAT

The parties differ on the question whether japans EFP and associated conduct is
governed by UNCLOS.
A dispute thus exists about the interpretation and application of UNCLOS within
the meaning of part XV
All the jurisdictional requirements of that part has been satisfied.
Japan’s objections to admissibility is unfounded.

DECISION

The Tribunal decided that it is without jurisdiction to decide on the merits of this
dispute and unanimously decided, in accordance with Article 290(5) of the United
Nations Convention on the Law of the Sea, that provisional measures in force by
Order of the International Tribunal for the Law of the Sea prescribed on August 27,
1999 are revoked from the day of the signature of this Award.

CONCLUSION

The Award represents a rare example of an arbitral body prepared to decline

jurisdiction and take the adventurous step of implying the exclusion of the
compulsory dispute settlement provisions of UNCLOS through the provisions of a
regional fisheries agreement, the CCSBT. The concerns expressed in the separate
opinion of Sir Kenneth Keith appear well-founded, especially in the context of a
dispute that involved only the invocation of general UNCLOS obligations. Above
all, the dispute highlights the care that needs to be taken in drafting dispute
settlement provisions in regional fisheries agreements, since the result in this case
derived mainly from a failure of the CCSBT to make explicit reference to the
UNCLOS dispute settlement provisions. Interestingly, the Award noted the effect
that an ‘in force’ Straddling Stocks Agreement (‘SSA’) may have had on the
outcome of this dispute, in particular its dispute settlement provisions which would
apply part XV of UNCLOS mutatis mutandis to disputes relating to the conservation
and management of highly migratory and straddling fish stocks. The arbitral
tribunal described the provisions of the SSA as ‘more detailed and far-reaching’
than those of UNCLOS and suggested that the SSA would have clarified both the
procedural and substantive aspects at issue in this dispute, if in force between the
parties. The Southern Bluefin Tuna Case provides an important example of the
uncomfortable overlap between UNCLOS and regional fisheries agreement dispute
settlement provisions. It should act as an incentive towards the prompt ratification
and entry into force of the SSA, so as to prevent UNCLOS mandatory system of
dispute settlement from ‘dissolving in the rain’.