The Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) Cases

Abstract

AbstractThe Southern Bluefin Tuna cases before the International Tribunal for the Law of the Sea resulted from disagreement between Australia, New Zealand and Japan related to the carrying out by Japan of an experimental fishing programme within the framework of the Convention for the Conservation of Southern Bluefin Tuna. The cases were the first instance of incidental proceedings on provisional measures under Article 290(5) of the LOS Convention and Article 25 of the ITLOS Statute, according to which ITLOS may 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". The article considers the parties' arguments for and against the use of provisional measures, considers the provisional measures ordered by ITLOS and the reasons therefor by comparison to the practice of the ICJs, and finally considers the establishment of an Arbitral Tribunal to hear the merits of the substantive case.