238
D. Tamada
exclusion of the UNCLOS-DSM, but an implicit exclusion is enough to preclude the
compulsory means of the UNCLOS-DSM. This interpretation of the tribunal was
criticised in detail by Judge Keith, who required an explicit exclusion in treaties for
fulfilling the requirement of Article 281(1).
84
Furthermore, the interpretation of Article 281(1), adopted in the SBT case, was
not espoused in the South China Sea case (the SCS case). In this case, the Philippines boldly asserted that ‘Bluefin Tuna […] was wrongly decided, and that Part XV
procedures are not trumped by the existence of some other treaty which says nothing
on the subject of UNCLOS disputes’ (emphasis added).
85 The SCS tribunal, relying
on the criticism of Judge Keith, adopted the following interpretation:
[…] the better view is that Article 281 requires some clear statement of exclusion of further
procedures. This is supported by the text and context of Article 281 and by the structure
and overall purpose of the Convention. The Tribunal thus shares the views of ITLOS in its
provisional measures orders in the Southern Bluefin Tuna and MOX Plant cases, as well as
the separate opinion of Judge Keith in Southern Bluefin Tuna that the majority’s statement
in that matter that “the absence of an express exclusion of any procedure … is not decisive”
is not in line with the intended meaning of Article 281 (emphasis added). 86
Here, the criterion has been reversed from the implicit exclusion approach (in
the SBT case) to the explicit exclusion approach (in the SCS case). This is an
example of contradictory findings in different cases – not uncommon in the practice
of arbitration.
87
Third, the award represents a victory for Japan, in the sense that the Annex VII
tribunal accepted Japan’s objection to jurisdiction for denying its own jurisdiction.
In this sense, this case resulted in a de facto victory for Japan, despite the fact
that the substantive issues remained unanswered. Following the award, the Japanese
Government issued the following statement
88 in which it welcomed the award, albeit
with reservations:
1. On August 4 (Japan time 5), the Arbitral Tribunal […] decided that it was without
jurisdiction to rule on the merits of the dispute and that the provisional measures in
force by Order […] were revoked. We welcome this award which confirms Japan’s
position that the tribunal has no jurisdiction.
2. The award only indicates that the case should have been submitted to a tribunal constituted under the Convention for the Conservation of Southern Bluefin Tuna. We should
84 Separate Opinion of Justice Sir Kenneth Keith, paras. 13, 19, and 30. See also, Alan Boyle, ‘The
Southern Bluefin Tuna Arbitration’, International and Comparative Law Quarterly, vol. 50 (2001),
pp. 451–452.
85 Hearing on Jurisdiction and Admissibility, Day 2 (8 July 2015), by Professor Boyle, p. 116;
Hearing on Jurisdiction and Admissibility, Day 3 (13 July 2015), by Professor Boyle, p. 47.
86 PCA Case No. 2013–19, in the matter of an arbitration before an arbitral tribunal constituted
under Annex VII to the 1982 UNCLOS between the Republic of the Philippines and the People’s
Republic of China, Award on Jurisdiction and Admissibility (29 October 2015), para. 223.
87 Dai Tamada, supra note 9, pp. 145–147.
88 Statement by Foreign Minister Yohei Kono on the Award on Jurisdiction and Admissibility on
the Southern Bluefin Tuna Case rendered by the Arbitral Tribunal constituted under Annex VII of
the United Nations Convention on the Law of the Sea (August 7, 2000), available at https://www.
mofa.go.jp/announce/announce/2000/8/807.html.
D. Tamada
exclusion of the UNCLOS-DSM, but an implicit exclusion is enough to preclude the
compulsory means of the UNCLOS-DSM. This interpretation of the tribunal was
criticised in detail by Judge Keith, who required an explicit exclusion in treaties for
fulfilling the requirement of Article 281(1).
84
Furthermore, the interpretation of Article 281(1), adopted in the SBT case, was
not espoused in the South China Sea case (the SCS case). In this case, the Philippines boldly asserted that ‘Bluefin Tuna […] was wrongly decided, and that Part XV
procedures are not trumped by the existence of some other treaty which says nothing
on the subject of UNCLOS disputes’ (emphasis added).
85 The SCS tribunal, relying
on the criticism of Judge Keith, adopted the following interpretation:
[…] the better view is that Article 281 requires some clear statement of exclusion of further
procedures. This is supported by the text and context of Article 281 and by the structure
and overall purpose of the Convention. The Tribunal thus shares the views of ITLOS in its
provisional measures orders in the Southern Bluefin Tuna and MOX Plant cases, as well as
the separate opinion of Judge Keith in Southern Bluefin Tuna that the majority’s statement
in that matter that “the absence of an express exclusion of any procedure … is not decisive”
is not in line with the intended meaning of Article 281 (emphasis added). 86
Here, the criterion has been reversed from the implicit exclusion approach (in
the SBT case) to the explicit exclusion approach (in the SCS case). This is an
example of contradictory findings in different cases – not uncommon in the practice
of arbitration.
87
Third, the award represents a victory for Japan, in the sense that the Annex VII
tribunal accepted Japan’s objection to jurisdiction for denying its own jurisdiction.
In this sense, this case resulted in a de facto victory for Japan, despite the fact
that the substantive issues remained unanswered. Following the award, the Japanese
Government issued the following statement
88 in which it welcomed the award, albeit
with reservations:
1. On August 4 (Japan time 5), the Arbitral Tribunal […] decided that it was without
jurisdiction to rule on the merits of the dispute and that the provisional measures in
force by Order […] were revoked. We welcome this award which confirms Japan’s
position that the tribunal has no jurisdiction.
2. The award only indicates that the case should have been submitted to a tribunal constituted under the Convention for the Conservation of Southern Bluefin Tuna. We should
84 Separate Opinion of Justice Sir Kenneth Keith, paras. 13, 19, and 30. See also, Alan Boyle, ‘The
Southern Bluefin Tuna Arbitration’, International and Comparative Law Quarterly, vol. 50 (2001),
pp. 451–452.
85 Hearing on Jurisdiction and Admissibility, Day 2 (8 July 2015), by Professor Boyle, p. 116;
Hearing on Jurisdiction and Admissibility, Day 3 (13 July 2015), by Professor Boyle, p. 47.
86 PCA Case No. 2013–19, in the matter of an arbitration before an arbitral tribunal constituted
under Annex VII to the 1982 UNCLOS between the Republic of the Philippines and the People’s
Republic of China, Award on Jurisdiction and Admissibility (29 October 2015), para. 223.
87 Dai Tamada, supra note 9, pp. 145–147.
88 Statement by Foreign Minister Yohei Kono on the Award on Jurisdiction and Admissibility on
the Southern Bluefin Tuna Case rendered by the Arbitral Tribunal constituted under Annex VII of
the United Nations Convention on the Law of the Sea (August 7, 2000), available at https://www.
mofa.go.jp/announce/announce/2000/8/807.html.