234
D. Tamada
freely any peaceful means for dispute settlement as set out, for instance, in Article 16
of CCSBT; (h) Article 281 is consistent with Japan’s position; (i) UNCLOS dispute
settlement should not transform discretionary/non-compulsory dispute settlement
provisions included in many other treaties into compulsory provisions
67 ; and (j)
UNCLOS affords Parties great leeway in the choice of means of dispute settlement.
In the alternative argument, Japan cited Articles 280–283 of UNCLOS for denying
the jurisdiction of the tribunal. Among those provisions, the emphasis was placed on
Article 281. Additionally, Japan raised several objections to the admissibility of the
applicants’ claims.
12.4.2 Award of the Annex VII Tribunal
(1) Mootness
The Annex VII tribunal briefly examined, before rejecting, the argument of
Japan that the case became moot on the ground that the case is prepared to limit
Japan’s experimental fishing programme (EFP) catch to 1,500 metric tonnes
(mt) which was proposed by Australia in 1999.
68
(2) Character of the dispute
The tribunal next dealt with the ‘fundamental and multifaceted issues of jurisdiction’, namely, ‘whether the dispute arises solely under the 1993 [CCSBT]
Convention, or whether it also arises under UNCLOS’.
69 For this issue, the
tribunal clarified its understanding of how to identify a dispute by stating that
‘it is for this Tribunal to decide whether the “real dispute” between the Parties
does or does not reasonably (and not just remotely) relate to the obligations set
forth in the treaties whose breach is alleged’.
70 In line with this understanding,
first, the tribunal stated that ‘it is plain that all the main elements of the dispute
between the Parties had been addressed within the Commission for the Conservation of Southern Bluefin Tuna and that the contentions of the Parties in respect
of that dispute related to the implementation of their obligations under the 1993
Convention’ (emphasis added).
71 Second, the next issue was whether the dispute
also falls within the provisions of UNCLOS. In this regard, the tribunal, recognising a ‘parallelism of treaties’ between CCSBT and UNCLOS, made clear that
obligations under the latter do not disappear even after the implementation of
67 Interestingly, Japan cites here the 1946 International Convention for the Regulation of Whaling
(ICRW) for explaining that ICRW parties do not have any intention of submitting any dispute
arising under the ICRW to the UNCLOS-DSM.
68 Award of 4 August 2000, paras. 45–46.
69 Award of 4 August 2000, para. 47.
70 Award of 4 August 2000, para. 48.
71 Award of 4 August 2000, para. 49.
D. Tamada
freely any peaceful means for dispute settlement as set out, for instance, in Article 16
of CCSBT; (h) Article 281 is consistent with Japan’s position; (i) UNCLOS dispute
settlement should not transform discretionary/non-compulsory dispute settlement
provisions included in many other treaties into compulsory provisions
67 ; and (j)
UNCLOS affords Parties great leeway in the choice of means of dispute settlement.
In the alternative argument, Japan cited Articles 280–283 of UNCLOS for denying
the jurisdiction of the tribunal. Among those provisions, the emphasis was placed on
Article 281. Additionally, Japan raised several objections to the admissibility of the
applicants’ claims.
12.4.2 Award of the Annex VII Tribunal
(1) Mootness
The Annex VII tribunal briefly examined, before rejecting, the argument of
Japan that the case became moot on the ground that the case is prepared to limit
Japan’s experimental fishing programme (EFP) catch to 1,500 metric tonnes
(mt) which was proposed by Australia in 1999.
68
(2) Character of the dispute
The tribunal next dealt with the ‘fundamental and multifaceted issues of jurisdiction’, namely, ‘whether the dispute arises solely under the 1993 [CCSBT]
Convention, or whether it also arises under UNCLOS’.
69 For this issue, the
tribunal clarified its understanding of how to identify a dispute by stating that
‘it is for this Tribunal to decide whether the “real dispute” between the Parties
does or does not reasonably (and not just remotely) relate to the obligations set
forth in the treaties whose breach is alleged’.
70 In line with this understanding,
first, the tribunal stated that ‘it is plain that all the main elements of the dispute
between the Parties had been addressed within the Commission for the Conservation of Southern Bluefin Tuna and that the contentions of the Parties in respect
of that dispute related to the implementation of their obligations under the 1993
Convention’ (emphasis added).
71 Second, the next issue was whether the dispute
also falls within the provisions of UNCLOS. In this regard, the tribunal, recognising a ‘parallelism of treaties’ between CCSBT and UNCLOS, made clear that
obligations under the latter do not disappear even after the implementation of
67 Interestingly, Japan cites here the 1946 International Convention for the Regulation of Whaling
(ICRW) for explaining that ICRW parties do not have any intention of submitting any dispute
arising under the ICRW to the UNCLOS-DSM.
68 Award of 4 August 2000, paras. 45–46.
69 Award of 4 August 2000, para. 47.
70 Award of 4 August 2000, para. 48.
71 Award of 4 August 2000, para. 49.