248
D. Tamada
the prompt release of vessels, in maintaining proper balance between the interests of
the States involved.
12.7 Conclusions
12.7.1 Japan’s Experience
First, Japan has experienced a variety of procedures within the UNCLOS-DSM: (1) it
experienced the position of applicant (two cases of prompt release) and of respondent
(the SBT case); (2) Japan has experienced provisional measure procedures within
the context of ITLOS, the jurisdiction and admissibility phase procedures of the
Annex VII tribunal, and the prompt release procedure of ITLOS; (3) the disputes
in which Japan has been involved have concerned living resources and the release
of vessels. There is no doubt, therefore, that Japan has learned much about, among
other things, the UNCLOS-DSM, litigation practice and strategy, the flexibility of
arbitral procedures, the network of practitioners, and the cost of procedure.
Second, overall, Japan successfully obtained favourable outcomes in all of the
cases within the scope of this chapter. In the SBT case, ITLOS , in its Order of provisional measures, generally accepted the arguments and submission of the Applicants, while it partially upheld the argument of Japan. Subsequently, the Annex VII
tribunal in the same case rendered its award entirely in Japan’s favour, by accepting
Japan’s objection to jurisdiction. In the prompt release cases, Japan was able to
obtain a favourable outcome in the “Hoshinmaru” case, while it failed to do so in
the “Tomimaru” case. Taking into consideration, however, the exceptional background to the latter, its conclusion should not be regarded as entirely detrimental to
Japan. Thus, it is not an exaggeration to say that Japan has not been defeated within
the UNCLOS-DSM.
Third, Japan has demonstrated, in the proceedings, a willingness to compromise
in order to ameliorate a situation, as was pointed out by the SBT tribunal:
As the Parties recognized during the oral hearings before this Tribunal, they have increasingly
manifested flexibility of approach to the problems that divide them (emphasis added). 135
The tribunal, in this context, referred to various aspects of Japan’s engagement,
as expressed by its Agent and Counsel, throughout proceedings, including: (1) the
strenuous efforts, which both sides have made in the context of CCSBT, have already
succeeded in narrowing the gap between the Parties; (2) the real possibility of renewed
negotiations on other elements of their differences; (3) Japan’s willingness to submit
its differences with the other parties to arbitration under Article 16 of CCSBT; and
(4) the fact that negotiations on the appropriate design for the EFP already being
under way. Summarily, Japan chose to cooperate with, rather than be hostile and
uncompromising towards, the applicant States through arbitration proceedings. This
135 Award of 4 August 2000, para. 68.
D. Tamada
the prompt release of vessels, in maintaining proper balance between the interests of
the States involved.
12.7 Conclusions
12.7.1 Japan’s Experience
First, Japan has experienced a variety of procedures within the UNCLOS-DSM: (1) it
experienced the position of applicant (two cases of prompt release) and of respondent
(the SBT case); (2) Japan has experienced provisional measure procedures within
the context of ITLOS, the jurisdiction and admissibility phase procedures of the
Annex VII tribunal, and the prompt release procedure of ITLOS; (3) the disputes
in which Japan has been involved have concerned living resources and the release
of vessels. There is no doubt, therefore, that Japan has learned much about, among
other things, the UNCLOS-DSM, litigation practice and strategy, the flexibility of
arbitral procedures, the network of practitioners, and the cost of procedure.
Second, overall, Japan successfully obtained favourable outcomes in all of the
cases within the scope of this chapter. In the SBT case, ITLOS , in its Order of provisional measures, generally accepted the arguments and submission of the Applicants, while it partially upheld the argument of Japan. Subsequently, the Annex VII
tribunal in the same case rendered its award entirely in Japan’s favour, by accepting
Japan’s objection to jurisdiction. In the prompt release cases, Japan was able to
obtain a favourable outcome in the “Hoshinmaru” case, while it failed to do so in
the “Tomimaru” case. Taking into consideration, however, the exceptional background to the latter, its conclusion should not be regarded as entirely detrimental to
Japan. Thus, it is not an exaggeration to say that Japan has not been defeated within
the UNCLOS-DSM.
Third, Japan has demonstrated, in the proceedings, a willingness to compromise
in order to ameliorate a situation, as was pointed out by the SBT tribunal:
As the Parties recognized during the oral hearings before this Tribunal, they have increasingly
manifested flexibility of approach to the problems that divide them (emphasis added). 135
The tribunal, in this context, referred to various aspects of Japan’s engagement,
as expressed by its Agent and Counsel, throughout proceedings, including: (1) the
strenuous efforts, which both sides have made in the context of CCSBT, have already
succeeded in narrowing the gap between the Parties; (2) the real possibility of renewed
negotiations on other elements of their differences; (3) Japan’s willingness to submit
its differences with the other parties to arbitration under Article 16 of CCSBT; and
(4) the fact that negotiations on the appropriate design for the EFP already being
under way. Summarily, Japan chose to cooperate with, rather than be hostile and
uncompromising towards, the applicant States through arbitration proceedings. This
135 Award of 4 August 2000, para. 68.