34
Failure to take the above requirements into account can lead to conclusions that
are wrong because not adequately supported by the practice invoked. This, I believe,
was precisely the mistake made by the Annex VII arbitral tribunal in the Southern
Bluefin Tuna cases. In its Award of 4 August 2000 (at para. 63), the Tribunal argued
as follows:
a significant number of international agreements with maritime elements, entered into force
after the adoption of UNCLOS, exclude with varying degrees of explicitness unilateral
reference of compulsory adjudicative or arbitral procedures. Many of these agreements
effect such exclusion by expressly requiring disputes to be resolved by mutually agreed
procedures, whether by negotiation and consultation or other method acceptable to the parties to the dispute or by arbitration or recourse to the International Court of Justice by common agreement of the parties to the dispute. (…) The Tribunal is of the view that the
existence of such a body of treaty practice – postdating as well as antedating the conclusion
of UNCLOS – tends to confirm the conclusion that States Parties to UNCLOS may, by
agreement, preclude subjection of their disputes [to procedures under Article 281
UNCLOS].
126
Now, while there is no doubt that provisions envisaging negotiation and diplomatic procedures are widely used in “a significant number of international agreements with maritime elements”, a more “specific” examination of the dispute
resolution clauses included in the agreements relating to the law of the sea suggests,
however, that the content of these clauses is way more varied than pointed out by the
arbitral tribunal in the Southern Bluefin Tuna case.
The arbitral tribunal’s argument remains unconvincing even when we consider
that, in fact, international agreements more and more frequently include clauses that
make provision for compulsory rather than optional recourse to conciliation, “quasijudicial” mechanisms, arbitration, or court adjudication. Thus, the practice vaguely
referred to by the arbitral tribunal is anything but unambiguous, clear and specific.
It should not have played such a prominent role in the decision on the disputes concerning the Southern Bluefin Tuna.
127
A rigorous assessment of the clarity and specificity of a subsequent practice and
of whether and how it is repeated over time (or, in the words used by the WTO’s
Appellate Body, an assessment of whether that practice is “concordant, common
and consistent’
128
) seems, moreover, to respond to the need to avoid a minority (if
not unilateral) interpretation of a multilateral treaty.
126 Arbitral Tribunal, Southern Bluefin Tuna (New Zealand v. Japan, Australia v. Japan), Award on
Jurisdiction and Admissibility, 4 August 2000, para. 63 (emphasis added).
127 Rather, as I have tried to show in a previous publication, agreements concerning the law of the
sea that regulate the same issues often provide for the same dispute resolution procedure, so much
so that, from this practice it seems to follow, at least with regard to some type of agreements, a
connection between substantive norms and recourse to a given procedure or specific system for
dispute resolution. See Virzo (2008), pp. 16–135.
128 WTO Appellate Body, Japan – Alcoholic Beverages II, Report, 1 November 1996, Section E,
pp. 12–13.
R. Virzo
Failure to take the above requirements into account can lead to conclusions that
are wrong because not adequately supported by the practice invoked. This, I believe,
was precisely the mistake made by the Annex VII arbitral tribunal in the Southern
Bluefin Tuna cases. In its Award of 4 August 2000 (at para. 63), the Tribunal argued
as follows:
a significant number of international agreements with maritime elements, entered into force
after the adoption of UNCLOS, exclude with varying degrees of explicitness unilateral
reference of compulsory adjudicative or arbitral procedures. Many of these agreements
effect such exclusion by expressly requiring disputes to be resolved by mutually agreed
procedures, whether by negotiation and consultation or other method acceptable to the parties to the dispute or by arbitration or recourse to the International Court of Justice by common agreement of the parties to the dispute. (…) The Tribunal is of the view that the
existence of such a body of treaty practice – postdating as well as antedating the conclusion
of UNCLOS – tends to confirm the conclusion that States Parties to UNCLOS may, by
agreement, preclude subjection of their disputes [to procedures under Article 281
UNCLOS].
126
Now, while there is no doubt that provisions envisaging negotiation and diplomatic procedures are widely used in “a significant number of international agreements with maritime elements”, a more “specific” examination of the dispute
resolution clauses included in the agreements relating to the law of the sea suggests,
however, that the content of these clauses is way more varied than pointed out by the
arbitral tribunal in the Southern Bluefin Tuna case.
The arbitral tribunal’s argument remains unconvincing even when we consider
that, in fact, international agreements more and more frequently include clauses that
make provision for compulsory rather than optional recourse to conciliation, “quasijudicial” mechanisms, arbitration, or court adjudication. Thus, the practice vaguely
referred to by the arbitral tribunal is anything but unambiguous, clear and specific.
It should not have played such a prominent role in the decision on the disputes concerning the Southern Bluefin Tuna.
127
A rigorous assessment of the clarity and specificity of a subsequent practice and
of whether and how it is repeated over time (or, in the words used by the WTO’s
Appellate Body, an assessment of whether that practice is “concordant, common
and consistent’
128
) seems, moreover, to respond to the need to avoid a minority (if
not unilateral) interpretation of a multilateral treaty.
126 Arbitral Tribunal, Southern Bluefin Tuna (New Zealand v. Japan, Australia v. Japan), Award on
Jurisdiction and Admissibility, 4 August 2000, para. 63 (emphasis added).
127 Rather, as I have tried to show in a previous publication, agreements concerning the law of the
sea that regulate the same issues often provide for the same dispute resolution procedure, so much
so that, from this practice it seems to follow, at least with regard to some type of agreements, a
connection between substantive norms and recourse to a given procedure or specific system for
dispute resolution. See Virzo (2008), pp. 16–135.
128 WTO Appellate Body, Japan – Alcoholic Beverages II, Report, 1 November 1996, Section E,
pp. 12–13.
R. Virzo