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D. Tamada
12.1.2 Japan’s Experience of International Litigation
Japan has been involved in three cases
3 in the UNCLOS-DSM. It should be recalled
that, before UNCLOS entered into force, Japan had participated only in few cases,
namely, the Maria Luz case (Award in 1875)
4 and the Japanese House Tax case
(Award in 1905).
5 It is true that Japan participated in two cases before the Permanent
Court of International Justice (PCIJ), namely, the Wimbledon case (1923)
6 and the
Memel Statute case (1932).
7 However, given that such participation had been merely
symbolic and superficial, the Southern Bluefin Tuna case (1999, 2000) was actually
the first meaningful international adjudication on the part of Japan in over 90 years.
8
12.2 Japan’s Participation in the UNCLOS-DSM
12.2.1 Overview of the UNCLOS-DSM
UNCLOS is characterised by the powerful dispute settlement mechanism stipulated
in Part XV (UNCLOS-DSM).
9 The most notable characteristic is that an arbitral
tribunal established under Annex VII (Annex VII tribunal) is accorded compulsory
jurisdiction. It should not be forgotten, however, that the UNCLOS-DSM undeniably contains limitations and restraints, as a means of international dispute settlement.
10 As discussed elsewhere, the most eminent characteristic of the UNCLOSDSM can be found in the mixture of several kinds of procedures, especially those
pertaining to provisional measures and to prompt release, in addition to the main
procedures such as those pertaining to preliminary objections, counter-claims, intervention, and merits. First, prompt release is a unique procedure in the sense that
no other forum has such an emergent procedure. This procedure is incorporated into
3 As the two Southern Bluefin Tuna cases filed separately by New Zealand and Australia were joined
into one case by the ITLOS , they count one here.
4 The Maria Luz case (Peru v. Japan), Award of 1875 in Japan’s favour.
5 Permanent Court of Arbitration, Japanese House Tax (Germany, France and Great Britain v.
Japan), Award of the Tribunal (22 May 1905), decided against Japan.
6 In this case, Japan participated in the proceedings as an applicant (along with the UK, France,
and Italy, with Poland intervening) against Germany. S.S. “Wimbledon” (United Kingdom, France,
Italy and Japan v. Germany) (Merits) PCIJ Series A No 1, p. 20. This case was quite advantageous
for Japan which experienced a victory in international litigation.
7 In this case, as well, Japan participated in the proceedings as an applicant State, with the UK,
France, and Italy against Lithuania. Interpretation of the Statute of the Memel Territory (UK v.
Lithuania) (Preliminary Objection) PCIJ Series A/B, No 47, p. 247.
8 Separate Opinion of Judge Laing (Order of 27 August 1999), para. 22.
9 See generally, Dai Tamada, ‘UNCLOS Dispute Settlement Mechanism: Contribution to the
Integrity of UNCLOS’, Japanese Yearbook of International Law, vol. 61 (2018a), pp. 132–166.
10 Dai Tamada, ‘The UNCLOS Dispute Settlement Mechanism: Effectiveness and Limitations’,
Kobe University Law Review, vol. 51 (2018b), pp. 24–39.
D. Tamada
12.1.2 Japan’s Experience of International Litigation
Japan has been involved in three cases
3 in the UNCLOS-DSM. It should be recalled
that, before UNCLOS entered into force, Japan had participated only in few cases,
namely, the Maria Luz case (Award in 1875)
4 and the Japanese House Tax case
(Award in 1905).
5 It is true that Japan participated in two cases before the Permanent
Court of International Justice (PCIJ), namely, the Wimbledon case (1923)
6 and the
Memel Statute case (1932).
7 However, given that such participation had been merely
symbolic and superficial, the Southern Bluefin Tuna case (1999, 2000) was actually
the first meaningful international adjudication on the part of Japan in over 90 years.
8
12.2 Japan’s Participation in the UNCLOS-DSM
12.2.1 Overview of the UNCLOS-DSM
UNCLOS is characterised by the powerful dispute settlement mechanism stipulated
in Part XV (UNCLOS-DSM).
9 The most notable characteristic is that an arbitral
tribunal established under Annex VII (Annex VII tribunal) is accorded compulsory
jurisdiction. It should not be forgotten, however, that the UNCLOS-DSM undeniably contains limitations and restraints, as a means of international dispute settlement.
10 As discussed elsewhere, the most eminent characteristic of the UNCLOSDSM can be found in the mixture of several kinds of procedures, especially those
pertaining to provisional measures and to prompt release, in addition to the main
procedures such as those pertaining to preliminary objections, counter-claims, intervention, and merits. First, prompt release is a unique procedure in the sense that
no other forum has such an emergent procedure. This procedure is incorporated into
3 As the two Southern Bluefin Tuna cases filed separately by New Zealand and Australia were joined
into one case by the ITLOS , they count one here.
4 The Maria Luz case (Peru v. Japan), Award of 1875 in Japan’s favour.
5 Permanent Court of Arbitration, Japanese House Tax (Germany, France and Great Britain v.
Japan), Award of the Tribunal (22 May 1905), decided against Japan.
6 In this case, Japan participated in the proceedings as an applicant (along with the UK, France,
and Italy, with Poland intervening) against Germany. S.S. “Wimbledon” (United Kingdom, France,
Italy and Japan v. Germany) (Merits) PCIJ Series A No 1, p. 20. This case was quite advantageous
for Japan which experienced a victory in international litigation.
7 In this case, as well, Japan participated in the proceedings as an applicant State, with the UK,
France, and Italy against Lithuania. Interpretation of the Statute of the Memel Territory (UK v.
Lithuania) (Preliminary Objection) PCIJ Series A/B, No 47, p. 247.
8 Separate Opinion of Judge Laing (Order of 27 August 1999), para. 22.
9 See generally, Dai Tamada, ‘UNCLOS Dispute Settlement Mechanism: Contribution to the
Integrity of UNCLOS’, Japanese Yearbook of International Law, vol. 61 (2018a), pp. 132–166.
10 Dai Tamada, ‘The UNCLOS Dispute Settlement Mechanism: Effectiveness and Limitations’,
Kobe University Law Review, vol. 51 (2018b), pp. 24–39.