228
D. Tamada
parties in the same interest’ (emphasis added).
31 In this case, the litigation strategy
of the applicant States was to strengthen their cases by consolidating two similar
positions into one.
32 On 6 August 1999, Japan filed a single Statement against the
two applicant States.
33
After the initiation of the cases, the Japanese Government intended to maintain
its friendly relationship with the applicant States by stating
34 :
On [the southern blue fin tuna] question, we have been discussing this with Australia and also
with New Zealand. Our discussions on the subject have not come to a successful conclusion.
[…] Australia earlier this month announced that it has decided to institute legal action over
this and we are now in the process of further clarifying exactly what courses may be followed.
We are in touch with the Government of Australia and also the Government of New Zealand
on this. Japan continues to approach this issue with a view to reaching a satisfactory resolution
through negotiations. We have not given up on negotiations, so we will continue to make
maximum efforts to that end. One point I would like to make is that we do not think that this
particular issue should or could mark the overall friendly, fruitful cooperative relationship
between Japan and Australia (emphasis added).
12.3.2 Arguments of the Parties
The main argument of the two applicants was that, in violation of Articles 64 and
116 to 119 of UNCLOS, the respondent, Japan, had failed to comply with its obligation to cooperate in the conservation of the SBT stock by, inter alia, undertaking
unilateral experimental fishing for SBT in 1998 and 1999, and had failed its obligations with regard to the requirements of the precautionary principle.
35 The two
applicants requested, as provisional measures : (1) that Japan immediately cease
unilateral experimental fishing for SBT; (2) that Japan restrict its catch to its national
allocation as last agreed in the Commission for the Conservation of Southern Bluefin
Tuna; and (3) that the parties act consistently with the precautionary principle, among
others.
36
Japan, objecting to the applicants’ positions, argued first that an Annex VII
tribunal would not have prima facie jurisdiction on the ground that the dispute neither
concerns the interpretation nor application of UNCLOS, and that two applicants have
31 Order of 16 August 1999. The criterion of ‘same interest’ seems to have been borrowed from the
ICJ jurisprudence on the joinder of cases.
32 Dai Tamada, ‘Unfavourable but Unavoidable Procedures: Procedural Aspects of the Whaling
Case’, in Malgosia Fitzmaurice and Dai Tamada (eds.), Whaling in the Antarctic: Significance and
Implications of the ICJ Judgment (2016), pp. 173–174.
33 Response of the Government of Japan to Request for Provisional Measures and Counter-Request
for Provisional Measures. Japan was allowed to file a single Statement in Response. Order of 27
August 1999, para. 17.
34 Press Conference by the Press Secretary (29 June 1999), available at https://www.mofa.go.jp/
announce/press/1999/6/629.html; Press Conference by the Press Secretary (2 July, 1999), available
at https://www.mofa.go.jp/announce/press/1999/7/702.html.
35 Order of 27 August 1999, paras. 28–29.
36 Order of 27 August 1999, paras. 31–32.
D. Tamada
parties in the same interest’ (emphasis added).
31 In this case, the litigation strategy
of the applicant States was to strengthen their cases by consolidating two similar
positions into one.
32 On 6 August 1999, Japan filed a single Statement against the
two applicant States.
33
After the initiation of the cases, the Japanese Government intended to maintain
its friendly relationship with the applicant States by stating
34 :
On [the southern blue fin tuna] question, we have been discussing this with Australia and also
with New Zealand. Our discussions on the subject have not come to a successful conclusion.
[…] Australia earlier this month announced that it has decided to institute legal action over
this and we are now in the process of further clarifying exactly what courses may be followed.
We are in touch with the Government of Australia and also the Government of New Zealand
on this. Japan continues to approach this issue with a view to reaching a satisfactory resolution
through negotiations. We have not given up on negotiations, so we will continue to make
maximum efforts to that end. One point I would like to make is that we do not think that this
particular issue should or could mark the overall friendly, fruitful cooperative relationship
between Japan and Australia (emphasis added).
12.3.2 Arguments of the Parties
The main argument of the two applicants was that, in violation of Articles 64 and
116 to 119 of UNCLOS, the respondent, Japan, had failed to comply with its obligation to cooperate in the conservation of the SBT stock by, inter alia, undertaking
unilateral experimental fishing for SBT in 1998 and 1999, and had failed its obligations with regard to the requirements of the precautionary principle.
35 The two
applicants requested, as provisional measures : (1) that Japan immediately cease
unilateral experimental fishing for SBT; (2) that Japan restrict its catch to its national
allocation as last agreed in the Commission for the Conservation of Southern Bluefin
Tuna; and (3) that the parties act consistently with the precautionary principle, among
others.
36
Japan, objecting to the applicants’ positions, argued first that an Annex VII
tribunal would not have prima facie jurisdiction on the ground that the dispute neither
concerns the interpretation nor application of UNCLOS, and that two applicants have
31 Order of 16 August 1999. The criterion of ‘same interest’ seems to have been borrowed from the
ICJ jurisprudence on the joinder of cases.
32 Dai Tamada, ‘Unfavourable but Unavoidable Procedures: Procedural Aspects of the Whaling
Case’, in Malgosia Fitzmaurice and Dai Tamada (eds.), Whaling in the Antarctic: Significance and
Implications of the ICJ Judgment (2016), pp. 173–174.
33 Response of the Government of Japan to Request for Provisional Measures and Counter-Request
for Provisional Measures. Japan was allowed to file a single Statement in Response. Order of 27
August 1999, para. 17.
34 Press Conference by the Press Secretary (29 June 1999), available at https://www.mofa.go.jp/
announce/press/1999/6/629.html; Press Conference by the Press Secretary (2 July, 1999), available
at https://www.mofa.go.jp/announce/press/1999/7/702.html.
35 Order of 27 August 1999, paras. 28–29.
36 Order of 27 August 1999, paras. 31–32.