12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
227
12.3 The Southern Bluefin Tuna Cases: Provisional
Measures Phase
12.3.1 Procedure of Provisional Measures
On 15 July 1999 , New Zealand and Australia submitted, respectively, Notifications
to Japan instituting arbitral proceedings under Annex VII of UNCLOS on a dispute
concerning the conservation and management of Southern Bluefin Tuna.
25 Notably,
there were two separate cases,
26 even though they were substantively identical.
The UNCLOS-DSM contains a unique procedure of emergent provisional
measures, unavailable to the ICJ, in which ITLOS , instead of an Annex VII tribunal,
possesses de facto compulsory jurisdiction in relation to provisional measures under
Article 290(5), which reads as follows:
Pending the constitution of an arbitral tribunal to which a dispute is being submitted under
this section, any court or tribunal agreed upon by the parties or, failing such agreement
within two weeks from the date of the request for provisional measures, the International
Tribunal for the Law of the Sea […] may prescribe, modify or revoke provisional measures
in accordance with this article 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 […]
(emphasis added).
On 30 July 1999,
27 New Zealand and Australia respectively
28 submitted requests
for provisional measures to ITLOS in accordance with Article 290(5).
29 ITLOS, by
its Order of 16 August 1999,
30 joined the two proceedings into one on the ground
that ‘the Requests submitted by New Zealand and Australia state that they appear as
25 At that time, Australia, Japan, and New Zealand had not chosen any means for dispute settlement
under Article 287 and, therefore, were deemed to have accepted Annex VII arbitration in accordance
with Article 287(3). Australia has now opted for ITLOS and the ICJ under Article 287(1).
26 New Zealand v. Japan was entered in the List of cases under No. 3, while Australia v. Japan under
No. 4.
27 As the Notifications were submitted to Japan on 15 July 1999, the time-limit of two weeks,
stipulated in Article 290(5), expired on 29 July 1999. Consequently, the following day, the two
applicants submitted requests to ITLOS. Order of 27 August 1999, para. 38.
28 To be precise, the filing of the two requests was done at separate times during the same day. Order
of 27 August 1999, paras. 2 and 5.
29 Request for the Prescription of Provisional Measures Submitted by New Zealand and Request
for the Prescription of Provisional Measures Submitted by Australia.
30 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), List of cases: Nos. 3
and 4, ITLOS Order of 16 August 1999. ITLOS applied Article 47 of the Rules of the Tribunal,
which provides that ‘[t]he Tribunal may at any time direct that the proceedings in two or more cases
be joined. It may also direct that the written or oral proceedings, including the calling of witnesses,
be in common; or the Tribunal may, without effecting any formal joinder, direct common action in
any of these respects’. Then, the applicant States, in their requests, had jointly nominated Mr. Ivan
Shearer as judge ad hoc. Order of 16 August 1999, para. 11.
227
12.3 The Southern Bluefin Tuna Cases: Provisional
Measures Phase
12.3.1 Procedure of Provisional Measures
On 15 July 1999 , New Zealand and Australia submitted, respectively, Notifications
to Japan instituting arbitral proceedings under Annex VII of UNCLOS on a dispute
concerning the conservation and management of Southern Bluefin Tuna.
25 Notably,
there were two separate cases,
26 even though they were substantively identical.
The UNCLOS-DSM contains a unique procedure of emergent provisional
measures, unavailable to the ICJ, in which ITLOS , instead of an Annex VII tribunal,
possesses de facto compulsory jurisdiction in relation to provisional measures under
Article 290(5), which reads as follows:
Pending the constitution of an arbitral tribunal to which a dispute is being submitted under
this section, any court or tribunal agreed upon by the parties or, failing such agreement
within two weeks from the date of the request for provisional measures, the International
Tribunal for the Law of the Sea […] may prescribe, modify or revoke provisional measures
in accordance with this article 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 […]
(emphasis added).
On 30 July 1999,
27 New Zealand and Australia respectively
28 submitted requests
for provisional measures to ITLOS in accordance with Article 290(5).
29 ITLOS, by
its Order of 16 August 1999,
30 joined the two proceedings into one on the ground
that ‘the Requests submitted by New Zealand and Australia state that they appear as
25 At that time, Australia, Japan, and New Zealand had not chosen any means for dispute settlement
under Article 287 and, therefore, were deemed to have accepted Annex VII arbitration in accordance
with Article 287(3). Australia has now opted for ITLOS and the ICJ under Article 287(1).
26 New Zealand v. Japan was entered in the List of cases under No. 3, while Australia v. Japan under
No. 4.
27 As the Notifications were submitted to Japan on 15 July 1999, the time-limit of two weeks,
stipulated in Article 290(5), expired on 29 July 1999. Consequently, the following day, the two
applicants submitted requests to ITLOS. Order of 27 August 1999, para. 38.
28 To be precise, the filing of the two requests was done at separate times during the same day. Order
of 27 August 1999, paras. 2 and 5.
29 Request for the Prescription of Provisional Measures Submitted by New Zealand and Request
for the Prescription of Provisional Measures Submitted by Australia.
30 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), List of cases: Nos. 3
and 4, ITLOS Order of 16 August 1999. ITLOS applied Article 47 of the Rules of the Tribunal,
which provides that ‘[t]he Tribunal may at any time direct that the proceedings in two or more cases
be joined. It may also direct that the written or oral proceedings, including the calling of witnesses,
be in common; or the Tribunal may, without effecting any formal joinder, direct common action in
any of these respects’. Then, the applicant States, in their requests, had jointly nominated Mr. Ivan
Shearer as judge ad hoc. Order of 16 August 1999, para. 11.