Southern Bluefin Tuna Case Research Articles

James Crawford and the Australian Government

Abstract This article by two international lawyers advising the Australian Government focuses on the cases before international courts and tribunals in which Professor Crawford appeared as counsel on behalf of the Australian Government including the Southern Bluefin Tuna Cases, the East Timor Case, the Whaling in the Antarctic Case and the Certain Documents and Data Case. The article also covers advice Professor Crawford provided to the Australian Government both in the course of those cases and on other matters such as compulsory pilotage in the Torres Strait. To paint the full picture, mention also is made of a limited number of matters earlier in his career in which he acted against Australia. The article illuminates Professor Crawford’s role as adviser, counsel and advocate for Australia across the full breadth of international law, from law of the sea and international environmental law, to the law on diplomatic protection and the law of treaties.

The Scope of Compulsory Jurisdiction and Exceptions Thereto under the United Nations Convention on the Law of the Sea

AbstractThe establishment of a compulsory dispute settlement mechanism in the United Nations Convention on the Law of the Sea (UNCLOS) is intended to be the guarantor of the proper application of the convention. Yet the decisions of courts and tribunals seized pursuant to the procedures under Section 2 of Part XV of UNCLOS are in many regards difficult to reconcile and in some regards unable to form the basis for a jurisprudence constante. This article examines on an empirical basis the scope and limits of the compulsory dispute settlement mechanism under UNCLOS, as applied by international courts and tribunals during a period of twenty years since the first decision in the Southern Bluefin Tuna case until the recent decision on preliminary objections in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean.

Remarks by Rüdiger Wolfrum

As agreed with the chairman, I will address several aspects of the dispute settlement mechanism of the UN Convention on the Law of the Sea (the Convention), namely its added value vis-a-vis the traditional international dispute settlement system, the relevance of case law in respect of the delimitation of maritime spaces, and the potential role that provisional measures, as well as advisory opinions, may--or even should--play in the settlement of maritime disputes. The establishment of a mandatory dispute settlement system is one of the major innovative advances of the Third UN Conference on the Law of the Sea compared to the international dispute settlement system in general. Article 286 of the Convention states in clear terms that any dispute concerning the interpretation or application of the Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section. If a dispute is not settled by negotiations, conciliation, or other means agreed upon by the parties, and accordingly comes under the dispute settlement procedure as provided for by section 2 of Part XV of the Convention, the parties only have the possibility to choose between the procedures set forth in Article 287 of the Convention. In this context it is mandatory to mention that Article 287 of the Convention entrusts three institutions with the task and the responsibility of interpreting and, within the framework of the Convention, progressively developing the text: namely the International Tribunal for the Law of the Sea; the International Court of Justice; and arbitration (the fallback position). This diversification of the judicial functions not only is a matter of political compromise to ameliorate the mandatory character of the dispute settlement system under Part XV of the Convention, but should also be seen as a means to broaden the basis for international jurisprudence on law of the sea matters. This requires the institutions concerned to harmonize their jurisprudence with the view to avoiding any fragmentation, in particular in respect of the delimitation of maritime areas. An assessment of the most recent cases--the Black Sea case, (1) the case between Barbados and the Republic of Trinidad and Tobago (Award of April 11, 2006), and the case between Bangladesh and Myanmar (2)--clearly demonstrates that the courts and tribunals are fully aware of this responsibility. Let me come back to the alternatives the Convention provides for under Section 1 of Part XV. In the past, ITLOS encountered a disagreement concerning the interpretation of Section 1 of Part XV of the Convention, containing the rules governing the alternatives to the judicial settlement of disputes under Section 2 of Part XV of the Convention. Whereas ITLOS accepted--prima facie--its jurisdiction and that of a still to be established arbitral tribunal in the Southern Bluefin Tuna case (3) under Article 290, paragraph 5 of the Convention, the Arbitral Tribunal later denied its jurisdiction. The matter of contention between ITLOS and the Arbitral Tribunal was the interpretation of Article 282 of the Convention, which gives preference over the dispute settlement system under Part XV of the Convention to generally, regionally, or bilaterally agreed dispute settlement mechanisms that entail a binding decision. The bottom line of this controversy was whether states parties to the Convention have the possibility to opt out of the mandatory dispute settlement system by having recourse to procedures not providing for binding decisions. In my view, ITLOS was right not to open the door for an easy way out. As far as the relevance of case law in procedures on the delimitation of maritime spaces is concerned, the Tribunal in its most recent judgment of March 14, 2012, in the Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh/Myanmar in the Bay of Bengal (Bangladesh/Myanmar) observed in paragraph 184 that [d]ecisions of international courts and tribunals referred to in article 38 of the Statute of the ICJ, are also of particular importance in determining the content of the law applicable to maritime delimitation under article 74 and 83 of the Convention. …

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

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.

The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case

AbstractThe Southern Bluefin Tuna case has provoked extensive commentary examining the implications of the litigation for the settlement of controversies involving the dispute settlement mechanisms of multiple treaties. However the case has a much broader significance. Drawing upon an analysis of the impact of the litigation on the Commission for the Conservation of SBT, this article explores the role of international adjudication in securing positive environmental outcomes. The case illustrates the significance of provisional measures in responding to environmental threats. However, judicial settlement is subject to several major limitations: generally it is reactive, can only involve a few parties and can only deal with a limited set of legal questions. More fundamentally, the effectiveness of international courts or arbitral panels may be constrained by the nature of environmental instruments themselves, which often lack precision in terms of objective rules of conduct and are often deeply ambivalent in terms of their objects and purposes.

The International Tribunal for the Law of the Sea: A Forum for the Development of Principles of International Environmental Law?

AbstractThis article examines the role of the ITLOS established by the 1982 Law of the Sea Convention. It considers the extent to which principles of international environmental law are reflected in the 1982 Convention. It then reviews the relevant jurisprudence of the tribunal including the Southern Blue-fin Tuna case between Japan and Australia and New Zealand, the MOX case between Ireland and the UK, and the Land Reclamation case between Malaysia and Singapore to determine the extent that the ITLOS case-law has indeed contributed to the development of certain key principles of international environmental law, including Stockholm Principle 21/Rio Principle 2, the principle of preventative action, cooperation and precaution.

The "Real Dispute" in the Southern Bluefin Tuna Case: A Scientific Dispute?

The "Real Dispute" in the Southern Bluefin Tuna Case: A Scientific Dispute?

Southern Bluefin Tuna Case: Australia and New Zealand v. Japan

Southern Bluefin Tuna Case: Australia and New Zealand v. Japan

The "Real Dispute" in the Southern Bluefin Tuna Case : a Scientific Dispute?

AbstractOn 4 August 2000 a LOSC Annex VII ad hoc arbitral tribunal issued its award in the Southern Bluefin Tuna case brought by Australia and New Zealand against Japan. It found it had no jurisdiction under the LOSC in respect of the SBT dispute. The decision has been controversial. This paper identifies the idea, prevalent in many parts of the pleadings in the case, that the "real dispute" in the case lay under the 1993 Convention, and discusses the associated idea that the dispute was scientific in character. Questions raised by the scientific issues in the case are explored, including what may constitute good or "best" scientific evidence, the suitability of scientific disputes for international adjudication, the appropriateness of precautionary approaches, the validity of "margins of appreciation", and the most appropriate forms of dispute resolution for cases involving science. The need for greater attention to be devoted to issues raised by the role of science in international dispute resolution may partly explain the strength of the undercurrent in the SBT case which pushed towards the view that there was only one "real dispute", which fell under the 1993 Convention.

Southern Bluefin Tuna Case — Australia and New Zealand v. Japan

Southern Bluefin Tuna Case — Australia and New Zealand v. Japan

Arbitral Tribunal Constituted Under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS): Southern Bluefin Tuna Case (Australia and New Zealand v. Japan) (Award on Jurisdiction and Admissibility)

Arbitral Tribunal Constituted Under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS): Southern Bluefin Tuna Case (Australia and New Zealand v. Japan) (Award on Jurisdiction and Admissibility)

The Southern Bluefin Tuna cases: the precautionary approach and conservation and management of fish resources

In the Southern Bluefin Tuna cases, the International Tribunal for the Law of the Sea ordered Japan immediately to refrain from conducting an experimental fishing programme. The unprecedented character of the case lies in the fact that the Tribunal applied the precautionary approach to fisheries although it did not expressly say so. The precautionary approach, however, is a principle which has found strong application in international environmental law within the last decade. Its status as regards customary international law is disputed and remains unresolved. However, the character of this case causes one to ask whether the Tribunal's Order was the missing link to argue that the precautionary approach to fisheries has evolved into a norm of customary international law, and, if so, what implications the Order may have for the determination of its content. In addition, it serves as a good example to illustrate the application of public international law on a broader scale as twisted between established legal norms and morality and common sense.

The Southern Bluefin Tuna Cases: ITLOS Order on Provisional Measures

Review of European Community & International Environmental LawVolume 9, Issue 1 p. 76-79 The Southern Bluefin Tuna Cases: ITLOS Order on Provisional Measures Kristina Leggett, Kristina LeggettSearch for more papers by this author Kristina Leggett, Kristina LeggettSearch for more papers by this author First published: 14 April 2003 https://doi.org/10.1111/1467-9388.00235Citations: 1AboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume9, Issue1April 2000Pages 76-79 RelatedInformation

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

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.

International Tribunal for the Law of the Sea: Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (Provisional Measures)

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From the 1893 Bering Sea Fur-Seals Case to the 1999 Southern Bluefin Tuna Cases: A Century of Efforts at Conservation of the Living Resources of the High Seas

From the 1893 Bering Sea Fur-Seals Case to the 1999 Southern Bluefin Tuna Cases: A Century of Efforts at Conservation of the Living Resources of the High Seas