122
ITLOS, in its Order of 27th August 1999, prescribed provisional measures ordering, inter alia, that Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a catch of
southern bluefin tuna.
90
However, the Annex VII Arbitral Tribunal would be constituted in the course of 1999.
91
Further, Japan’s experimental programme would end
no later than 31st August 1999.
92
As the Order of ITLOS was given on 27th August
1999, immediate cessation of the experimental fishing during the last 4 days would
have only a symbolic value.
93
An issue thus arose whether or not a situation of
urgency which required the prescription of provisional measures existed in the
Southern Bluefin Tuna cases.
94
Even though ITLOS remained mute in this matter,
Judge Treves provided the following insightful view:
The urgency needed in the present case does not, in my opinion, concern the danger of a
collapse of the stock in the months which will elapse between the reading of the Order and
the time when the arbitral tribunal will be in a position to prescribe provisional measures.
This event, in light of scientific evidence, is uncertain and unlikely. The urgency concerns
the stopping of a trend towards such collapse. The measures prescribed by the Tribunal aim
at stopping the deterioration in the southern bluefin tuna stock. Each step in such deterioration can be seen as ‘serious harm’ because of its cumulative effect towards the collapse of
the stock.
95
In this context, it must also be noted that normally scientific uncertainty exists in
conservation of these resources. Accordingly, as ITLOS stated in the Southern
Bluefin Tuna cases,
96
prudence and caution may be required when assessing the
existence of urgency. Hence the concept of urgency in the context of conservation
of marine living resources is to be closely linked to the precautionary approach.
97
In
this regard, Judge Treves took the view that “the requirement of urgency is satisfied
only in the light of such precautionary approach”.
98
Further to this, the learned judge
highlighted the inter-linkage between provisional measures and the precautionary
approach, stating: “[A] precautionary approach seems to me inherent in the very
notion of provisional measures”.
99
Thus three elements, i.e. urgency, precautionary
approach and provisional measures are intimately inter-linked in the context of conservation of marine living resources.
90 The Southern Bluefin Tuna Cases, Order, para. 90.
91 Ibidem, Dissenting Opinion of Judge Vukas, para. 4.
92 Ibidem, para. 5.
93 Ibidem. However, it must be noted that Japan has made no commitment regarding any experimental fishing programmes after 1999. The Southern Bluefin Tuna Cases, Order, para. 84.
94 Evans (1999), p. 13.
95 Emphasis added. The Southern Bluefin Tuna Cases, Separate Opinion of Judge Treves, para. 8.
96 Ibidem, Order, para. 77.
97 The customary law nature of the precautionary approach or principle remains a matter for discussion. Even so, it is possible that a court or tribunal takes account of the precautionary approach as
an element of interpretation of the law applicable to a specific case. See Tanaka (2008), p. 492.
98 The Southern Bluefin Tuna Cases, Separate Opinion of Judge Treves, para. 8.
99 Ibidem, para. 9.
Y. Tanaka
ITLOS, in its Order of 27th August 1999, prescribed provisional measures ordering, inter alia, that Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a catch of
southern bluefin tuna.
90
However, the Annex VII Arbitral Tribunal would be constituted in the course of 1999.
91
Further, Japan’s experimental programme would end
no later than 31st August 1999.
92
As the Order of ITLOS was given on 27th August
1999, immediate cessation of the experimental fishing during the last 4 days would
have only a symbolic value.
93
An issue thus arose whether or not a situation of
urgency which required the prescription of provisional measures existed in the
Southern Bluefin Tuna cases.
94
Even though ITLOS remained mute in this matter,
Judge Treves provided the following insightful view:
The urgency needed in the present case does not, in my opinion, concern the danger of a
collapse of the stock in the months which will elapse between the reading of the Order and
the time when the arbitral tribunal will be in a position to prescribe provisional measures.
This event, in light of scientific evidence, is uncertain and unlikely. The urgency concerns
the stopping of a trend towards such collapse. The measures prescribed by the Tribunal aim
at stopping the deterioration in the southern bluefin tuna stock. Each step in such deterioration can be seen as ‘serious harm’ because of its cumulative effect towards the collapse of
the stock.
95
In this context, it must also be noted that normally scientific uncertainty exists in
conservation of these resources. Accordingly, as ITLOS stated in the Southern
Bluefin Tuna cases,
96
prudence and caution may be required when assessing the
existence of urgency. Hence the concept of urgency in the context of conservation
of marine living resources is to be closely linked to the precautionary approach.
97
In
this regard, Judge Treves took the view that “the requirement of urgency is satisfied
only in the light of such precautionary approach”.
98
Further to this, the learned judge
highlighted the inter-linkage between provisional measures and the precautionary
approach, stating: “[A] precautionary approach seems to me inherent in the very
notion of provisional measures”.
99
Thus three elements, i.e. urgency, precautionary
approach and provisional measures are intimately inter-linked in the context of conservation of marine living resources.
90 The Southern Bluefin Tuna Cases, Order, para. 90.
91 Ibidem, Dissenting Opinion of Judge Vukas, para. 4.
92 Ibidem, para. 5.
93 Ibidem. However, it must be noted that Japan has made no commitment regarding any experimental fishing programmes after 1999. The Southern Bluefin Tuna Cases, Order, para. 84.
94 Evans (1999), p. 13.
95 Emphasis added. The Southern Bluefin Tuna Cases, Separate Opinion of Judge Treves, para. 8.
96 Ibidem, Order, para. 77.
97 The customary law nature of the precautionary approach or principle remains a matter for discussion. Even so, it is possible that a court or tribunal takes account of the precautionary approach as
an element of interpretation of the law applicable to a specific case. See Tanaka (2008), p. 492.
98 The Southern Bluefin Tuna Cases, Separate Opinion of Judge Treves, para. 8.
99 Ibidem, para. 9.
Y. Tanaka