224
D. Tamada
which is approximately 14.6% of the overall ITLOS budget) . Second, Japan has
consistently provided judges to ITLOS since its establishment in 1996, namely, the
late Judge Soji Yamamoto from 1996 to 2005 and Judge Shunji Yanai (from 2005
to 2014, 2014 to 2023, and as ITLOS President from October 2011 until the end of
September 2014). Third, Japan has been involved in several cases as a disputing party,
namely, the Southern Bluefin Tuna Cases (the SBT cases, both in 1999) concerning
disputes between Japan and Australia and Japan and New Zealand over Japan’s
experimental fishing, and the Hoshinmaru Case and Tomimaru Case (both in 2007),
in which Japan sought the prompt release of Japanese fishing vessels detained by
Russia.
12.2.4 Declaration on the Choice of Procedure (Article 287)
According to Article 287(1) of UNCLOS, ‘a State shall be free to choose, by means
of a written declaration, one or more of the following means for the settlement
of disputes concerning the interpretation or application of this Convention’. Said
means are: (a) ITLOS (Annex VI), (b) the ICJ, (c) an arbitral tribunal constituted
in accordance with Annex VII , and (d) a special arbitral tribunal constituted in
accordance with Annex VIII.
Japan has not deposited any declaration with the UN Secretary-General with
regard to the choice of procedure.
14 Consequently, in such circumstances, Japan
‘shall be deemed to have accepted arbitration in accordance with Annex VII ’ (Article
287(3)). Taking into account the coincidence principle, stipulated in Article 287(5),
15
only an Annex VII tribunal may have jurisdiction in any case submitted against Japan
or submitted by Japan. Although Japan has long accepted (namely, since 1958) the
compulsory jurisdiction of the ICJ,
16 it has not explained the reason it did not choose
the ICJ among the means under Article 287. It can be presumed that Japan prefers
the Annex VII tribunal option due to the greater scope to control the appointment
of arbitrators and the arbitral procedure.
14 ITLOS, ‘Declarations made by States Parties under article 287’, available at https://www.
itlos.org/en/jurisdiction/declarations-of-states-parties/declarations-made-by-states-parties-underarticle-287/.
15 Article 287(5): ‘If the parties to a dispute have not accepted the same procedure for the settlement
of the dispute, it may be submitted only to arbitration in accordance with Annex VII , unless the
parties otherwise agree’.
16 Japan has deposited the ICJ optional clause declaration on three occasions, namely, in 1958, 2007,
and 2015.
D. Tamada
which is approximately 14.6% of the overall ITLOS budget) . Second, Japan has
consistently provided judges to ITLOS since its establishment in 1996, namely, the
late Judge Soji Yamamoto from 1996 to 2005 and Judge Shunji Yanai (from 2005
to 2014, 2014 to 2023, and as ITLOS President from October 2011 until the end of
September 2014). Third, Japan has been involved in several cases as a disputing party,
namely, the Southern Bluefin Tuna Cases (the SBT cases, both in 1999) concerning
disputes between Japan and Australia and Japan and New Zealand over Japan’s
experimental fishing, and the Hoshinmaru Case and Tomimaru Case (both in 2007),
in which Japan sought the prompt release of Japanese fishing vessels detained by
Russia.
12.2.4 Declaration on the Choice of Procedure (Article 287)
According to Article 287(1) of UNCLOS, ‘a State shall be free to choose, by means
of a written declaration, one or more of the following means for the settlement
of disputes concerning the interpretation or application of this Convention’. Said
means are: (a) ITLOS (Annex VI), (b) the ICJ, (c) an arbitral tribunal constituted
in accordance with Annex VII , and (d) a special arbitral tribunal constituted in
accordance with Annex VIII.
Japan has not deposited any declaration with the UN Secretary-General with
regard to the choice of procedure.
14 Consequently, in such circumstances, Japan
‘shall be deemed to have accepted arbitration in accordance with Annex VII ’ (Article
287(3)). Taking into account the coincidence principle, stipulated in Article 287(5),
15
only an Annex VII tribunal may have jurisdiction in any case submitted against Japan
or submitted by Japan. Although Japan has long accepted (namely, since 1958) the
compulsory jurisdiction of the ICJ,
16 it has not explained the reason it did not choose
the ICJ among the means under Article 287. It can be presumed that Japan prefers
the Annex VII tribunal option due to the greater scope to control the appointment
of arbitrators and the arbitral procedure.
14 ITLOS, ‘Declarations made by States Parties under article 287’, available at https://www.
itlos.org/en/jurisdiction/declarations-of-states-parties/declarations-made-by-states-parties-underarticle-287/.
15 Article 287(5): ‘If the parties to a dispute have not accepted the same procedure for the settlement
of the dispute, it may be submitted only to arbitration in accordance with Annex VII , unless the
parties otherwise agree’.
16 Japan has deposited the ICJ optional clause declaration on three occasions, namely, in 1958, 2007,
and 2015.