The Precautionary Approach at the International Tribunal for the Law of the Sea: the Southern Bluefin Tuna cases

Abstract

The Southern Bluefin Tuna cases offer a rare judicial pronouncement on the application of the Principle in marine conservation. Specifically, the 1999 application for provisional measures to the International Tribunal for the Law of the Sea (ITLOS), initiated by Australia and New Zealand to limit a unilateral Japanese experimental fishing programme, yielded reasoned judicial guidance on Precaution in the law of the sea and marine fisheries. Apart from the contribution of the ITLOS' order of provisional measures itself, the separate opinions of Judges Laing, Treves and Shearer helped to define the contours of a Precautionary approach in a modern fisheries dispute. The fact that the order of provisional measures was ultimately dissolved by the later constituted arbitral tribunal for lack of jurisdiction need not detract from the ITLOS' important legal reasoning on the issue of Precaution. The enduring legacy of the cases will be their impact on the availability of ITLOS provisional measures to address fisheries' disputes in their preliminary phases, as well as illuminative judicial reasoning which will help to shape the application of the Principle for many years to come.