232
D. Tamada
found that the 1993 CCSBT did ‘not preclude recourse to the procedures in Part XV,
Sect. 2’,
55 manifestly contrary to what was stated later by the Annex VII tribunal.
Third, with regard to the timing of the Order, it was rendered on 27 August 1999,
while Japan had previously made ‘clear [its] commitment that the 1999 experimental
fishing programme will end by 31 August [1999]’ (emphasis added).
56 This means
that the Tribunal’s Order had the effect of ordering the suspension of Japanese experimental fishing only by five days earlier than initially intended by Japan.
57 Nevertheless, the ITLOS Order was subsequently appreciated by the relevant Annex VII
tribunal
58 and also welcomed by Australia.
59
Fourth, it would be inaccurate to conclude that the Order amounts to a total victory
on the part of the applicants. It should be recalled, rather, that in its counter-request,
Japan had requested that the parties recommence negotiations without delay, and this
request was approved by ITLOS in operative paragraph 1(e) and (f) of the Order.
After the Order was rendered, in its statement
60 Japan made clear that:
1. […] The ITLOS Order did not deny the necessity of the EFP nor order the cessation of
the EFP, but ordered that EFP conducted without a consensus among the three countries
must be done within national allocations. It is regrettable that Japan’s views were not
fully understood. Japan intends to take necessary measures without delay.
2. […] Japan had requested […] that Australia and New Zealand recommence negotiations
that the two countries had unilaterally terminated. This Order also instructs the three
countries to resume negotiations without delay and we believe that Japan’s arguments
were accepted. Japan would like to resume negotiations without delay with Australia and
New Zealand so that the EFP can be conducted jointly and hopes that the two countries
will respond to this positively.
3. […] during the oral proceedings concerning the request for provisional measures at
ITLOS […], some of the major arguments that Japan had strongly made were the
following. Japan is a responsible fishing country that has made every effort for the
conservation of the fishery resources including southern bluefin tuna. EFP is essential
for the collection of scientific data necessary for the objective evaluation of the state
of the stock and independent scientists from third countries support the EFP (emphasis
added).
55 Order of 27 August 1999, paras. 55.
56 Order of 27 August 1999, paras. 83.
57 In this sense, it is said that the Order has only ‘a symbolic value’. Dissenting Opinion of Judge
Vukas, ITLOS Reports 1999, p. 333. See also, R.R. Churchill, ‘ITLOS , the Southern Bluefin Tuna
cases (New Zealand v. Japan; Australia v. Japan): Order for Provisional Measures of 27 August
1999)’, International and Comparative Law Quarterly, vol. 49 (2000), p. 986.
58 In its award, the Annex VII tribunal clarifies that the ITLOS Order and the decisions, taken by
the parties in conformity with it, did have ‘impact not merely in the suspension of Japan’s unilateral
experimental fishing program during the period that the Order was in force, but on the perspectives
and actions of the Parties’. Award of 4 August 2000, para. 67.
59 Australia pointed out that the ITLOS Order ‘already had played a significant role in encouraging
the Parties to make progress on the issue of third-party fishing’. Award of 4 August 2000, para. 69.
60 Statement by Foreign Minister Masahiko Koumura on the International Tribunal for the Law of
the Sea’s Order on the Request for Provisional Measures concerning Japan’s Experimental Fishing
Program on Southern Bluefin Tuna (August 27, 1999), available at https://www.mofa.go.jp/ann
ounce/announce/1999/8/827.html.
D. Tamada
found that the 1993 CCSBT did ‘not preclude recourse to the procedures in Part XV,
Sect. 2’,
55 manifestly contrary to what was stated later by the Annex VII tribunal.
Third, with regard to the timing of the Order, it was rendered on 27 August 1999,
while Japan had previously made ‘clear [its] commitment that the 1999 experimental
fishing programme will end by 31 August [1999]’ (emphasis added).
56 This means
that the Tribunal’s Order had the effect of ordering the suspension of Japanese experimental fishing only by five days earlier than initially intended by Japan.
57 Nevertheless, the ITLOS Order was subsequently appreciated by the relevant Annex VII
tribunal
58 and also welcomed by Australia.
59
Fourth, it would be inaccurate to conclude that the Order amounts to a total victory
on the part of the applicants. It should be recalled, rather, that in its counter-request,
Japan had requested that the parties recommence negotiations without delay, and this
request was approved by ITLOS in operative paragraph 1(e) and (f) of the Order.
After the Order was rendered, in its statement
60 Japan made clear that:
1. […] The ITLOS Order did not deny the necessity of the EFP nor order the cessation of
the EFP, but ordered that EFP conducted without a consensus among the three countries
must be done within national allocations. It is regrettable that Japan’s views were not
fully understood. Japan intends to take necessary measures without delay.
2. […] Japan had requested […] that Australia and New Zealand recommence negotiations
that the two countries had unilaterally terminated. This Order also instructs the three
countries to resume negotiations without delay and we believe that Japan’s arguments
were accepted. Japan would like to resume negotiations without delay with Australia and
New Zealand so that the EFP can be conducted jointly and hopes that the two countries
will respond to this positively.
3. […] during the oral proceedings concerning the request for provisional measures at
ITLOS […], some of the major arguments that Japan had strongly made were the
following. Japan is a responsible fishing country that has made every effort for the
conservation of the fishery resources including southern bluefin tuna. EFP is essential
for the collection of scientific data necessary for the objective evaluation of the state
of the stock and independent scientists from third countries support the EFP (emphasis
added).
55 Order of 27 August 1999, paras. 55.
56 Order of 27 August 1999, paras. 83.
57 In this sense, it is said that the Order has only ‘a symbolic value’. Dissenting Opinion of Judge
Vukas, ITLOS Reports 1999, p. 333. See also, R.R. Churchill, ‘ITLOS , the Southern Bluefin Tuna
cases (New Zealand v. Japan; Australia v. Japan): Order for Provisional Measures of 27 August
1999)’, International and Comparative Law Quarterly, vol. 49 (2000), p. 986.
58 In its award, the Annex VII tribunal clarifies that the ITLOS Order and the decisions, taken by
the parties in conformity with it, did have ‘impact not merely in the suspension of Japan’s unilateral
experimental fishing program during the period that the Order was in force, but on the perspectives
and actions of the Parties’. Award of 4 August 2000, para. 67.
59 Australia pointed out that the ITLOS Order ‘already had played a significant role in encouraging
the Parties to make progress on the issue of third-party fishing’. Award of 4 August 2000, para. 69.
60 Statement by Foreign Minister Masahiko Koumura on the International Tribunal for the Law of
the Sea’s Order on the Request for Provisional Measures concerning Japan’s Experimental Fishing
Program on Southern Bluefin Tuna (August 27, 1999), available at https://www.mofa.go.jp/ann
ounce/announce/1999/8/827.html.