12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
231
2. […];
3. […] (emphasis added).
12.3.4 Analysis
This is the first case in which an Order of provisional measures was prescribed under
Article 290(5). Before the SBT case, an Order had been issued in the SAIGA No.2
case,
50 however, this was done under Article 290(1). The ITLOS Order in the SBT
case is remarkable for a number of reasons.
First, ITLOS, on the basis of Article 290 (1), emphasised the importance of the
‘marine environment’ within the procedure of provisional measures . This understanding, reiterated in subsequent cases, means that a particular value is attached to
the marine environment, including living resources. Based on this conservationist
stance, ITLOS, while not directly referring to the precautionary principle, stated
that ‘the parties should […] act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the [SBT] stock’
(emphasis added).
51 This part of the Order, read in conjunction with paragraph 80
where ITLOS admits the uncertainty of scientific evidence, should be understood
as an application of the precautionary principle or approach,
52 without clarifying
its source and ground.
53 This understanding may, however, have less to do with the
indirect operation of the precautionary principle, and more to do with the special
character of UNCLOS provisional measures under Article 290(1) which directly
and explicitly admits provisional measures ‘to prevent serious harm to the marine
environment’.
54
Second, as seen below, the Annex VII tribunal had denied its own jurisdiction
on the ground of Article 281 of UNCLOS, although ITLOS admitted its prima facie
jurisdiction. It is true that there is no contradiction between the two findings, since
one concerned a prima facie finding while the other a definitive finding. Considering
the motif of the above findings, however, a contradiction remains given that ITLOS
50 The M/V SAIGA (No.2) case (Saint Vincent and the Grenadines v. Guinea), Provisional
measures , Order of 11 March 1998. ITLOS Reports 1998, p. 24.
51 Order of 27 August 1999, paras. 77.
52 Separate Opinion of Judge Laing, paras. 13 and 19; Separate Opinion of Judge ad hoc Chearer,
ITLOS Reports 1999, p. 327. Judge ad hoc Chearer opined that the measures ordered by the Tribunal
‘are rightly based upon considerations deriving from a precautionary approach’. See also, Barbara
Kwiatkowska, ‘Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Order on Provisional Measures (ITLOS Cases Nos. 3 and 4)’, American Journal of International Law, vol. 94
(2000), p. 153.
53 It is said that ITLOS applied the precautionary approach ‘in a common sense way or as a principle
required by morality’. Simon Marr, ‘The Southern Bluefin Tuna Cases: The Precautionary Approach
and Conservation and Management of Fish Resources’, European Journal of International Law,
vol. 11 (2000), p. 830.
54 Separate Opinion of Judge Treves, para. 6. Judge Treves opined that ‘a precautionary approach
seems to me inherent in the very notion of provisional measures’. Ibid., para. 9.
231
2. […];
3. […] (emphasis added).
12.3.4 Analysis
This is the first case in which an Order of provisional measures was prescribed under
Article 290(5). Before the SBT case, an Order had been issued in the SAIGA No.2
case,
50 however, this was done under Article 290(1). The ITLOS Order in the SBT
case is remarkable for a number of reasons.
First, ITLOS, on the basis of Article 290 (1), emphasised the importance of the
‘marine environment’ within the procedure of provisional measures . This understanding, reiterated in subsequent cases, means that a particular value is attached to
the marine environment, including living resources. Based on this conservationist
stance, ITLOS, while not directly referring to the precautionary principle, stated
that ‘the parties should […] act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the [SBT] stock’
(emphasis added).
51 This part of the Order, read in conjunction with paragraph 80
where ITLOS admits the uncertainty of scientific evidence, should be understood
as an application of the precautionary principle or approach,
52 without clarifying
its source and ground.
53 This understanding may, however, have less to do with the
indirect operation of the precautionary principle, and more to do with the special
character of UNCLOS provisional measures under Article 290(1) which directly
and explicitly admits provisional measures ‘to prevent serious harm to the marine
environment’.
54
Second, as seen below, the Annex VII tribunal had denied its own jurisdiction
on the ground of Article 281 of UNCLOS, although ITLOS admitted its prima facie
jurisdiction. It is true that there is no contradiction between the two findings, since
one concerned a prima facie finding while the other a definitive finding. Considering
the motif of the above findings, however, a contradiction remains given that ITLOS
50 The M/V SAIGA (No.2) case (Saint Vincent and the Grenadines v. Guinea), Provisional
measures , Order of 11 March 1998. ITLOS Reports 1998, p. 24.
51 Order of 27 August 1999, paras. 77.
52 Separate Opinion of Judge Laing, paras. 13 and 19; Separate Opinion of Judge ad hoc Chearer,
ITLOS Reports 1999, p. 327. Judge ad hoc Chearer opined that the measures ordered by the Tribunal
‘are rightly based upon considerations deriving from a precautionary approach’. See also, Barbara
Kwiatkowska, ‘Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Order on Provisional Measures (ITLOS Cases Nos. 3 and 4)’, American Journal of International Law, vol. 94
(2000), p. 153.
53 It is said that ITLOS applied the precautionary approach ‘in a common sense way or as a principle
required by morality’. Simon Marr, ‘The Southern Bluefin Tuna Cases: The Precautionary Approach
and Conservation and Management of Fish Resources’, European Journal of International Law,
vol. 11 (2000), p. 830.
54 Separate Opinion of Judge Treves, para. 6. Judge Treves opined that ‘a precautionary approach
seems to me inherent in the very notion of provisional measures’. Ibid., para. 9.