12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
229
not attempted in good faith to reach settlement in accordance with UNCLOS Part
XV. Second, Japan requested, in its counter-request,
37 that the Tribunal grant Japan
provisional relief in the form of prescribing that the two applicants recommence
negotiations with Japan.
38
12.3.3 Order of Provisional Measures
On 27 August 1999, ITLOS rendered a single order in response to the three requests
for provisional measures.
39
(1) Prima facie jurisdiction
In the first half of the Order, ITLOS dealt with the prima facie jurisdiction issue.
With regard to Japan’s argument, presumably based on Article 282,
40 that the 1993
Convention for the Conservation of Southern Bluefin Tuna (CCSBT), including its
own dispute settlement procedure, precludes the application of UNCLOS,
41 ITLOS
responded that ‘the fact that the Convention of 1993 applies between the parties
does not preclude recourse to the procedures in Part XV, section 2’ of UNCLOS.
42
With regard to Japan’s next argument, presumably based on Articles 281(1)
43 and
286,
44 that the applicants had not exhausted the procedures for amicable dispute
settlement,
45 ITLOS stated that ‘a State Party is not obliged to pursue procedures
under Part XV, section 1, of the Convention when it concludes that the possibilities
37 Japan relied on Article 89(5) of the Rules of the Tribunal which provides that ‘[w]hen a request
for provisional measures has been made, the Tribunal may prescribe measures different in whole
or in part from those requested and indicate the parties which are to take or to comply with each
measure’.
38 Order of 27 August 1999, paras. 33.
39 The Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Order, Requests
for provisional measures, 27 August 1999, ITLOS Reports 1999, p. 280.
40 Article 282: ‘If the States Parties which are parties to a dispute concerning the interpretation
or application of this Convention have agreed, through a general, regional or bilateral agreement
or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to
a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures
provided for in this Part, unless the parties to the dispute otherwise agree’ (emphasis added).
41 Order of 27 August 1999, paras. 53.
42 Order of 27 August 1999, paras. 55.
43 Article 281(1): ‘If the States Parties which are parties to a dispute concerning the interpretation
or application of this Convention have agreed to seek settlement of the dispute by a peaceful means
of their own choice, the procedures provided for in this Part apply only where no settlement has
been reached by recourse to such means and the agreement between the parties does not exclude
any further procedure’ (emphasis added).
44 Article 286: ‘[…] any dispute concerning the interpretation or application of this Convention
shall, where no settlement has been reached by recourse to section 1, be submitted at the request of
any party to the dispute to the court or tribunal having jurisdiction under this section’.
45 Order of 27 August 1999, paras. 56.
229
not attempted in good faith to reach settlement in accordance with UNCLOS Part
XV. Second, Japan requested, in its counter-request,
37 that the Tribunal grant Japan
provisional relief in the form of prescribing that the two applicants recommence
negotiations with Japan.
38
12.3.3 Order of Provisional Measures
On 27 August 1999, ITLOS rendered a single order in response to the three requests
for provisional measures.
39
(1) Prima facie jurisdiction
In the first half of the Order, ITLOS dealt with the prima facie jurisdiction issue.
With regard to Japan’s argument, presumably based on Article 282,
40 that the 1993
Convention for the Conservation of Southern Bluefin Tuna (CCSBT), including its
own dispute settlement procedure, precludes the application of UNCLOS,
41 ITLOS
responded that ‘the fact that the Convention of 1993 applies between the parties
does not preclude recourse to the procedures in Part XV, section 2’ of UNCLOS.
42
With regard to Japan’s next argument, presumably based on Articles 281(1)
43 and
286,
44 that the applicants had not exhausted the procedures for amicable dispute
settlement,
45 ITLOS stated that ‘a State Party is not obliged to pursue procedures
under Part XV, section 1, of the Convention when it concludes that the possibilities
37 Japan relied on Article 89(5) of the Rules of the Tribunal which provides that ‘[w]hen a request
for provisional measures has been made, the Tribunal may prescribe measures different in whole
or in part from those requested and indicate the parties which are to take or to comply with each
measure’.
38 Order of 27 August 1999, paras. 33.
39 The Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Order, Requests
for provisional measures, 27 August 1999, ITLOS Reports 1999, p. 280.
40 Article 282: ‘If the States Parties which are parties to a dispute concerning the interpretation
or application of this Convention have agreed, through a general, regional or bilateral agreement
or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to
a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures
provided for in this Part, unless the parties to the dispute otherwise agree’ (emphasis added).
41 Order of 27 August 1999, paras. 53.
42 Order of 27 August 1999, paras. 55.
43 Article 281(1): ‘If the States Parties which are parties to a dispute concerning the interpretation
or application of this Convention have agreed to seek settlement of the dispute by a peaceful means
of their own choice, the procedures provided for in this Part apply only where no settlement has
been reached by recourse to such means and the agreement between the parties does not exclude
any further procedure’ (emphasis added).
44 Article 286: ‘[…] any dispute concerning the interpretation or application of this Convention
shall, where no settlement has been reached by recourse to section 1, be submitted at the request of
any party to the dispute to the court or tribunal having jurisdiction under this section’.
45 Order of 27 August 1999, paras. 56.