12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
237
12.4.3 Analysis
The SBT case was the first case, not only in the sense that Japan appeared before
the UNCLOS-DSM for the first time, but also in that an Annex VII tribunal was
constituted for the first time in the history of UNCLOS. Consequently, this case made
clear various aspects and particular characteristics of the UNCLOS-DSM.
First, it made clear that the UNCLOS-DSM constitutes a mixture of several procedures, which interact in a supplemental or contradictory way, depending on a case.
In the SBT case, ITLOS , in its Order of provisional measures , found that an Annex
VII tribunal would possess prima facie jurisdiction, while the subsequently established tribunal examined, and denied, its own jurisdiction, contrary to the provisional
finding of ITLOS . This should be understood not as a conflict of findings between
two fora, but rather as collaboration between them, in the sense that different functions are allocated to different dispute resolution procedures within UNCLOS. This
is so, especially in the emergent provisional measures provided in Article 290(5).
It should be recalled, in this context, that the Annex VII tribunal stated that ‘the
ITLOS holdings upheld no more than the jurisdiction prima facie of this [Arbitral]
Tribunal. It remains for it [Annex VII tribunal] to decide whether it has jurisdiction
to pass upon the merits of the dispute’.
82 This mention is based on the understanding
that a finding on prima facie jurisdiction under Article 290(5) can be different to a
definitive finding on jurisdiction. In the ICJ’s jurisprudence, the test of prima facie
jurisdiction has been established for avoiding contradictory findings between the
provisional measures phase and the jurisdiction phase, and this is why the reversal
of a jurisdictional finding should be exceptional. Actually, there has been a case in
which the ICJ reversed its own finding on prima facie jurisdiction, by stating that:
The Court further recalls that, in the same Order, it also indicated that this provisional
conclusion is without prejudice to the Court’s definitive decision on the question of whether
it has jurisdiction to deal with the merits of the case (emphasis added). 83
A balance should be struck between the urgency of the special provisional
measures under Article 290(5) and the need for a through examination of jurisdictional conditions at the jurisdiction phase.
Second, the main issue of the SBT case was how to understand the relationship
between UNCLOS and other treaties implementing it, and between the UNCLOSDSM and the dispute settlement procedures provided by those treaties. The tribunal
addressed this issue by interpreting and applying the UNCLOS provisions concerning
the jurisdiction of the Annex VII tribunal. Among the UNCLOS provisions, Article
281(1) was pivotal for the tribunal to conclude that Article 16 of CCSBT excludes
the applicability of the compulsory means of the UNCLOS-DSM. The central point
of the tribunal’s interpretation was that Article 281(1) does not require an explicit
82 Award of 4 August 2000, para. 37.
83 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections , Judgment of 1 April 2011, I.C.J.
Reports 2011, p. 124, para. 129.
237
12.4.3 Analysis
The SBT case was the first case, not only in the sense that Japan appeared before
the UNCLOS-DSM for the first time, but also in that an Annex VII tribunal was
constituted for the first time in the history of UNCLOS. Consequently, this case made
clear various aspects and particular characteristics of the UNCLOS-DSM.
First, it made clear that the UNCLOS-DSM constitutes a mixture of several procedures, which interact in a supplemental or contradictory way, depending on a case.
In the SBT case, ITLOS , in its Order of provisional measures , found that an Annex
VII tribunal would possess prima facie jurisdiction, while the subsequently established tribunal examined, and denied, its own jurisdiction, contrary to the provisional
finding of ITLOS . This should be understood not as a conflict of findings between
two fora, but rather as collaboration between them, in the sense that different functions are allocated to different dispute resolution procedures within UNCLOS. This
is so, especially in the emergent provisional measures provided in Article 290(5).
It should be recalled, in this context, that the Annex VII tribunal stated that ‘the
ITLOS holdings upheld no more than the jurisdiction prima facie of this [Arbitral]
Tribunal. It remains for it [Annex VII tribunal] to decide whether it has jurisdiction
to pass upon the merits of the dispute’.
82 This mention is based on the understanding
that a finding on prima facie jurisdiction under Article 290(5) can be different to a
definitive finding on jurisdiction. In the ICJ’s jurisprudence, the test of prima facie
jurisdiction has been established for avoiding contradictory findings between the
provisional measures phase and the jurisdiction phase, and this is why the reversal
of a jurisdictional finding should be exceptional. Actually, there has been a case in
which the ICJ reversed its own finding on prima facie jurisdiction, by stating that:
The Court further recalls that, in the same Order, it also indicated that this provisional
conclusion is without prejudice to the Court’s definitive decision on the question of whether
it has jurisdiction to deal with the merits of the case (emphasis added). 83
A balance should be struck between the urgency of the special provisional
measures under Article 290(5) and the need for a through examination of jurisdictional conditions at the jurisdiction phase.
Second, the main issue of the SBT case was how to understand the relationship
between UNCLOS and other treaties implementing it, and between the UNCLOSDSM and the dispute settlement procedures provided by those treaties. The tribunal
addressed this issue by interpreting and applying the UNCLOS provisions concerning
the jurisdiction of the Annex VII tribunal. Among the UNCLOS provisions, Article
281(1) was pivotal for the tribunal to conclude that Article 16 of CCSBT excludes
the applicability of the compulsory means of the UNCLOS-DSM. The central point
of the tribunal’s interpretation was that Article 281(1) does not require an explicit
82 Award of 4 August 2000, para. 37.
83 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections , Judgment of 1 April 2011, I.C.J.
Reports 2011, p. 124, para. 129.