The Southern Bluefin Tuna Dispute: Hints of a World to Come . Like It or Not

Abstract

On August 4, 2000, an ad hoc Arbitral Tribunal decided that it lacked the jurisdiction to hear the merits of the Southern Bluefin Tuna dispute involving Australia/ New Zealand and Japan. Several issues make the Southern Bluefin Tuna an extremely fertile case. This was the first time an arbitral tribunal was constituted under Part XV and Annex VII of UNCLOS. More importantly, the dispute brings forward several issues that are likely to be increasingly present in international litigation in future decades. First, the applicants had a choice of judicial fora in which to initiate proceedings. As the number of international judicial bodies continues to expand, similar issues will likely take up the concerns of practitioners and scholars alike. Second, the Southern Bluefin Tuna dispute is one of the few cases in which arbitration has been initiated unilaterally. Third, the dispute raised certain fundamental issues about the structure and institutional architecture of the United Nations Convention on the Law of the Sea (UNCLOS). For instance, the Arbitral Tribunal considered whether the dispute settlement procedure contained in Part XV of UNCLOS prevailed over dispute settlement procedures in other sectorial and regional agreements, in which instances they prevailed, and to what extent. Finally, the Southern Bluefin Tuna dispute arose from the failure of a regional and sectorial fishing regime. It illustrates what happens when regimes fail to function and sheds some light on when and why they might crash.