SOUTHERN BLUEFIN TUNA CASES Australia and New Zealand v. Japan

Transcription

1 SOUTHERN BLUEFIN TUNA CASES Australia and New Zealand v. Japan Reply on Jurisdiction Australia and New Zealand Volume I Text 31 March 2000

2 Table of Contents Paragraph No. CHAPTER 1. INTRODUCTION AND OVERVIEW (1) Background to these proceedings (2) Conclusions of ITLOS as to the prima facie jurisdiction of this Tribunal (a) The reasoning of the Order itself (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 (b) Position of judges in separate and dissenting opinions (c) Indications for the present Tribunal (3) The structure of this Reply CHAPTER 2. THE JURISDICTIONAL REQUIREMENTS OF UNCLOS, PART XV ARE SATISFIED (1) The character of UNCLOS (including Part XV) as a regime for the law of the sea (2) There is a dispute concerning the interpretation or application of UNCLOS (a) There is a legal dispute between the parties over the conservation and management of SBT (i) UNCLOS obligations are engaged by the dispute, which accordingly is one concerning the interpretation or application of UNCLOS (b) The meaning of the phrase concerning the interpretation or application of in compromissory clauses (i) The present dispute concerns the interpretation or application of UNCLOS (c) A/NZ invoked UNCLOS in the course of the dispute i

3 (3) The dispute has been submitted to this Tribunal in accordance with Part XV (a) The attempt to settle the dispute by peaceful means (b) The parties have failed to achieve a settlement (c) There is no agreement to submit the dispute to a procedure that entails a binding decision (d) There was an exchange of views between the parties (4) Conclusion CHAPTER 3. THE TRIBUNAL S JURISDICTION UNDER PART XV IS NOT EXCLUDED BY THE 1993 CONVENTION (1) The characterisation of the dispute (a) Japan s argument for exclusive characterisation of the dispute under the 1993 Convention (b) The characterisation of the dispute in the diplomatic exchanges (2) The relation between UNCLOS and the 1993 Convention: Japan s legal arguments for excluding its UNCLOS obligations (a) The 1993 Convention does not cover UNCLOS conservation obligations (i) Article (ii) Article (iii) Article (iv) Article (v) Article (vi) Conclusion (b) The 1993 Convention was not intended to derogate from Part XV (c) The relation between UNCLOS and specific implementation conventions (i) The 1993 Convention does not and exclude substantive UNCLOS obligations (ii) Article 16 does not and cannot exclude recourse to Part XV procedures (iii) Conclusion (d) Japan s reliance on certain general principles of law (i) The 1993 Convention and the lex posterior principle (ii) The 1993 Convention and the lex specialis principle (iii) Conclusion (3) Conclusion ii

4 CHAPTER 4. JAPAN S OBJECTIONS TO THE ADMISSIBILITY OF THE DISPUTE ARE UNFOUNDED (1) The question of justiciability (2) The failure to proceed against third parties (3) The remedial powers of the Tribunal (4) Good faith (5) The alleged absence of a prima facie case CHAPTER 5. CONCLUSION AND SUBMISSIONS APPENDIX Response to Certain Factual Assertions in Japan s Memorial on Jurisdiction iii

5 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 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 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) 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 2 Dossier, vol. 1, Nos. 3 & 4, respectively. Dossier, vol. 1, Nos. 1 & 2, respectively. 1

6 Following oral hearings in Hamburg on 16 and August 1999, 4 ITLOS prescribed certain provisional measures by Order of 27 August (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 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: Dossier, vol. 1, Nos. 5 & 6, respectively. For the transcript of the hearings see Dossier, vol. 3, Nos For the separate and dissenting opinions, Dossier, vol. 4, Nos ITLOS Order, para. 41. For the Order see Dossier, vol. 4, No

7 (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 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. ITLOS Order, para. 43. Ibid., para

8 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 Ibid., para. 50. Ibid., para. 51. Ibid., para

9 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 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 Ibid., para. 55. Ibid., para. 57. Ibid., para. 58. Ibid., para. 59. Ibid., para. 60. Ibid., para. 61. Ibid., para

10 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 6

11 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 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 7

12 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). 8

13 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. 9

14 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 10

15 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 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 UNCLOS, preambular para. 1. UNCLOS, preambular para. 4. 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. 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. UNCLOS, Article 309. Certain declarations only are permitted: Article 310. UNCLOS, Article 311. See further below, paras

16 28. Section 2 (Articles ) 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 ) 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 XV 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 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. 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. 12

17 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 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

18 (b) (c) that the dispute involves or implicates the interpretation and application of UNCLOS, within the meaning of Part XV; and 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 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, The same argument was made before ITLOS and summarily rejected: above, para

19 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 of UNCLOS. Such a dispute is a legal dispute 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 On Japan s cognate argument that the dispute is non-justiciable see below, paras 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

20 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 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 Accordingly, adopting the approach of the International Court in the Genocide case, an approach which the Court described as in line with well-established 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. 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. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, ICJ Reports 1950, p. 65 at p

21 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 wellestablished 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

22 (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 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 (1924) PCIJ Series A. No.2. Ibid., p

23 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 Ibid., p.29. ICJ Reports 1984, p.392. Ibid., p. 427 (para. 81). 19

24 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 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 Ibid., p. 428 (para. 83). Ibid., p. 441 (para. 111). 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 If that is the test, it is clearly satisfied here. ICJ Reports 1996 p.595. Ibid., pp (para. 31). Ibid., pp (para. 32). Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objections, ICJ Reports 1996 p

25 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 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 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 It follows that its lawfulness can be evaluated in relation to that paragraph Ibid., p. 810 (para. 16). Ibid., p. 815 (para. 31). Ibid., p. 816 (para. 36). Ibid., p. 820 (para. 51) (emphasis added). 21

26 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 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

27 accordance with Article 14, paragraph 1 of the Convention, falls to be decided by the Court 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 Cooperation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures ICJ Reports 1998 p. 9 at p. 17 (paras ). 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. Judgment of 4 December 1998, as yet unreported. See Japan, Memorial on Jurisdiction, vol. 1, para

28 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 The Court emphasised the difference between the rules for the interpretation of treaties and of unilateral declarations: judgment of 4 December 1998, para. 46. See below, paras