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I. The Southern Bluefin Tuna Arbitration

Published online by Cambridge University Press:  17 January 2008

Malcolm D. Evans  and
Alan Boyle
Malcolm D. Evans
Affiliation:
The aim of this section is to survey, on a selective basis, some of the more important decisions of international tribunals.
Alan Boyle
Affiliation:
The aim of this section is to survey, on a selective basis, some of the more important decisions of international tribunals.
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Extract

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

Type
Articles
Information
International & Comparative Law Quarterly , Volume 50 , Issue 2 , April 2001 , pp. 447 - 452
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. , Churchill, The Southern Bluefin Tuna Cases, 49 I.C.L.Q. 979 (2000)Google Scholar. See also articles by various authors in 10 Ybk. Int. Env. L (1999), and , Kwiatkowska, The Southern Bluefin Tuna Cases, 15 I.J.M.C.L. 1 (2000).Google Scholar

2. Southern Bluefin Tuna Cases (Provisional Measures), ITLOS Nos. 3 and 4 (1999), at paras 52–62.

3. The arbitration was held at ICSID. For the full text of the award and the pleadings see the World Bank website at www.worldbank.org/icsid.

4. At para. 52.

5. At para. 63. The relevant part of UNCLOS Art. 281 (1) reads: 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 does not exclude any further procedure.… (emphasis added).

6. At para. 58. The relevant part of CCSBT Art. 16 reads:

1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.

2. Any dispute of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.

7. UNCLOS Art. 282 reads: 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. (emphasis added)

8. 1982 UNCLOS, Art. 64, 116–119.

9. See , Boyle, Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction (1997) 46 I.C.L.Q. 37–54.CrossRefGoogle Scholar

10. Chile-EC: Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean, ITLOS No.7, Order No.2000/3 (2000). On 17 November 2000 the EC referred elements of the same dispute to the Dispute Settlement Body of the World Trade Organization. Both cases were suspended following an agreement on 24 January 2001.