12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
233
It is true that the argument of Japan, namely, that the three countries should recommence negotiations, was accepted by ITLOS in the operative paragraphs 1(e) and
1(f). It should be noted, however, that those paragraphs contain the more exhortative
‘should’, contrary to previous paragraphs in which the Order resorts to the compelling
‘shall’.
61
12.4 The Southern Bluefin Tuna Case: Jurisdiction Phase
The Southern Bluefin Tuna case,
62 that is the first case under Annex VII,
63 turned
into the jurisdictional phase of the Annex VII tribunal, which was constituted after
the ITLOS Order of provisional measures.
64 The tribunal eventually rendered an
award on 4 August 2000,
65 by which it denied its own jurisdiction, and set aside the
previous ITLOS Order. Consequently, the case resulted in the de facto victory of
Japan.
12.4.1 Position of Japan
Japan’s main arguments, in its objections to jurisdiction, were as follows
66 : (a) the
dispute is one concerning the interpretation and implementation of CCSBT, and
not a dispute concerning the interpretation or application of UNCLOS; (b) CCSBT
(1993) alone regulated relations among three countries before the entry into force of
UNCLOS inter partes (1996); (c) CCSBT is lex specialis in relation to UNCLOS.
Articles 65 and 116–119 of UNCLOS are fully covered by the more specific provisions of CCSBT; (d) the real dispute is under CCSBT, since the applicants had not
instigated similar proceedings against Korea, Taiwan, or Indonesia under UNCLOS;
(e) Article 311 of UNCLOS is compatible with Japan’s analysis; (f) Article 282 does
not support the positions of the applicants; (g) Article 280 allows the parties to choose
61 Barbara Kwiatkowska, supra note 52, p. 153; R.R. Churchill, supra note 57, p. 987.
62 Continuously from the provisional measures phase, Australia and New Zealand expressed their
wish to be considered a single party in the proceedings on the jurisdictional issue. Award of 4
August 2000, para. 11.
63 Award of 4 August 2000, para. 44. Before this award, three cases had already concluded, namely,
the M/V “SAIGA” case and the M/V “SAIGA” (No. 2) case, and the “Camouco” case, all of which
were before ITLOS.
64 The arbitrators were Judge Stephen M. Schwebel (President), H.E. Judge Florentino Feliciano,
The Rt. Hon. Justice Sir Kenneth Keith, KBE, H.E. Judge Per Tresselt, and Professor Chusei
Yamada.
65 Southern Bluefin Tuna Case between Australia and Japan and between New Zealand and Japan,
Award on Jurisdiction and Admissibility, Decision of 4 August 2000. Reports of International
Arbitral Awards, Vol. XXIII, p. 2.
66 Award of 4 August 2000, paras. 38–40.
233
It is true that the argument of Japan, namely, that the three countries should recommence negotiations, was accepted by ITLOS in the operative paragraphs 1(e) and
1(f). It should be noted, however, that those paragraphs contain the more exhortative
‘should’, contrary to previous paragraphs in which the Order resorts to the compelling
‘shall’.
61
12.4 The Southern Bluefin Tuna Case: Jurisdiction Phase
The Southern Bluefin Tuna case,
62 that is the first case under Annex VII,
63 turned
into the jurisdictional phase of the Annex VII tribunal, which was constituted after
the ITLOS Order of provisional measures.
64 The tribunal eventually rendered an
award on 4 August 2000,
65 by which it denied its own jurisdiction, and set aside the
previous ITLOS Order. Consequently, the case resulted in the de facto victory of
Japan.
12.4.1 Position of Japan
Japan’s main arguments, in its objections to jurisdiction, were as follows
66 : (a) the
dispute is one concerning the interpretation and implementation of CCSBT, and
not a dispute concerning the interpretation or application of UNCLOS; (b) CCSBT
(1993) alone regulated relations among three countries before the entry into force of
UNCLOS inter partes (1996); (c) CCSBT is lex specialis in relation to UNCLOS.
Articles 65 and 116–119 of UNCLOS are fully covered by the more specific provisions of CCSBT; (d) the real dispute is under CCSBT, since the applicants had not
instigated similar proceedings against Korea, Taiwan, or Indonesia under UNCLOS;
(e) Article 311 of UNCLOS is compatible with Japan’s analysis; (f) Article 282 does
not support the positions of the applicants; (g) Article 280 allows the parties to choose
61 Barbara Kwiatkowska, supra note 52, p. 153; R.R. Churchill, supra note 57, p. 987.
62 Continuously from the provisional measures phase, Australia and New Zealand expressed their
wish to be considered a single party in the proceedings on the jurisdictional issue. Award of 4
August 2000, para. 11.
63 Award of 4 August 2000, para. 44. Before this award, three cases had already concluded, namely,
the M/V “SAIGA” case and the M/V “SAIGA” (No. 2) case, and the “Camouco” case, all of which
were before ITLOS.
64 The arbitrators were Judge Stephen M. Schwebel (President), H.E. Judge Florentino Feliciano,
The Rt. Hon. Justice Sir Kenneth Keith, KBE, H.E. Judge Per Tresselt, and Professor Chusei
Yamada.
65 Southern Bluefin Tuna Case between Australia and Japan and between New Zealand and Japan,
Award on Jurisdiction and Admissibility, Decision of 4 August 2000. Reports of International
Arbitral Awards, Vol. XXIII, p. 2.
66 Award of 4 August 2000, paras. 38–40.