230
D. Tamada
of settlement have been exhausted’.
46 Based on the foregoing, ITLOS found that
the arbitral tribunal would possess prima facie jurisdiction.
(2) Urgency
In the second half of the Order, ITLOS, treating the urgency requirement, made
several key remarks. ITLOS, mindful of Article 290(1),
47 stated that ‘the Tribunal
may prescribe provisional measures to preserve the respective rights of the parties
to the dispute or to prevent serious harm to the marine environment’.
48 In addition,
it continues to state that ‘the conservation of the living resources of the sea is an
element in the protection and preservation of the marine environment’ (emphasis
added). Consequently, through Article 290(1), the conservation of the SBT stock falls
within the scope of provisional measures. Confronted with ‘scientific uncertainty’
as to the measures to be taken to conserve SBT stocks, ITLOS concluded that:
although the Tribunal cannot conclusively assess the scientific evidence presented by the
parties, it finds that measures should be taken as a matter of urgency to preserve the rights
of the parties and to avert further deterioration of the southern bluefin tuna stock. 49
(3) Operative provisions
In the operative part of the Order, ITLOS concluded that:
1 (a) (20–2) Australia, Japan and New Zealand shall each ensure that no action is taken
which might aggravate or extend the disputes […];
(b) (20–2) Australia, Japan and New Zealand shall each ensure that no action is taken which
might prejudice the carrying out of any decision on the merits […];
(c) (18–4) Australia, Japan and New Zealand shall ensure, unless they agree otherwise, that
their annual catches do not exceed the annual national allocations at the levels last agreed
by the parties of 5,265 tonnes, 6,065 tonnes and 420 tonnes, respectively; in calculating
the annual catches for 1999 and 2000, and without prejudice to any decision of the arbitral
tribunal, account shall be taken of the catch during 1999 as part of an experimental fishing
programme;
(d) (20–2) Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a catch of southern bluefin tuna, except
with the agreement of the other parties or unless the experimental catch is counted against
its annual national allocation as prescribed in subparagraph (c);
(e) (21–1) Australia, Japan and New Zealand should resume negotiations without delay with
a view to reaching agreement on measures for the conservation and management of southern
bluefin tuna;
(f) (20–2) Australia, Japan and New Zealand should make further efforts to reach agreement
with other States and fishing entities engaged in fishing for southern bluefin tuna, with a view
to ensuring conservation and promoting the objective of optimum utilization of the stock;
46 Order of 27 August 1999, paras. 60.
47 Article 290(1): ‘[…] the court or tribunal may prescribe any provisional measures which it
considers appropriate under the circumstances to preserve the respective rights of the parties to
the dispute or to prevent serious harm to the marine environment […]’ (emphasis added).
48 Order of 27 August 1999, paras. 67.
49 Order of 27 August 1999, paras. 80.
D. Tamada
of settlement have been exhausted’.
46 Based on the foregoing, ITLOS found that
the arbitral tribunal would possess prima facie jurisdiction.
(2) Urgency
In the second half of the Order, ITLOS, treating the urgency requirement, made
several key remarks. ITLOS, mindful of Article 290(1),
47 stated that ‘the Tribunal
may prescribe provisional measures to preserve the respective rights of the parties
to the dispute or to prevent serious harm to the marine environment’.
48 In addition,
it continues to state that ‘the conservation of the living resources of the sea is an
element in the protection and preservation of the marine environment’ (emphasis
added). Consequently, through Article 290(1), the conservation of the SBT stock falls
within the scope of provisional measures. Confronted with ‘scientific uncertainty’
as to the measures to be taken to conserve SBT stocks, ITLOS concluded that:
although the Tribunal cannot conclusively assess the scientific evidence presented by the
parties, it finds that measures should be taken as a matter of urgency to preserve the rights
of the parties and to avert further deterioration of the southern bluefin tuna stock. 49
(3) Operative provisions
In the operative part of the Order, ITLOS concluded that:
1 (a) (20–2) Australia, Japan and New Zealand shall each ensure that no action is taken
which might aggravate or extend the disputes […];
(b) (20–2) Australia, Japan and New Zealand shall each ensure that no action is taken which
might prejudice the carrying out of any decision on the merits […];
(c) (18–4) Australia, Japan and New Zealand shall ensure, unless they agree otherwise, that
their annual catches do not exceed the annual national allocations at the levels last agreed
by the parties of 5,265 tonnes, 6,065 tonnes and 420 tonnes, respectively; in calculating
the annual catches for 1999 and 2000, and without prejudice to any decision of the arbitral
tribunal, account shall be taken of the catch during 1999 as part of an experimental fishing
programme;
(d) (20–2) Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a catch of southern bluefin tuna, except
with the agreement of the other parties or unless the experimental catch is counted against
its annual national allocation as prescribed in subparagraph (c);
(e) (21–1) Australia, Japan and New Zealand should resume negotiations without delay with
a view to reaching agreement on measures for the conservation and management of southern
bluefin tuna;
(f) (20–2) Australia, Japan and New Zealand should make further efforts to reach agreement
with other States and fishing entities engaged in fishing for southern bluefin tuna, with a view
to ensuring conservation and promoting the objective of optimum utilization of the stock;
46 Order of 27 August 1999, paras. 60.
47 Article 290(1): ‘[…] the court or tribunal may prescribe any provisional measures which it
considers appropriate under the circumstances to preserve the respective rights of the parties to
the dispute or to prevent serious harm to the marine environment […]’ (emphasis added).
48 Order of 27 August 1999, paras. 67.
49 Order of 27 August 1999, paras. 80.