12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
249
signifies that the arbitration worked not only for establishing the winning party and
the losing party in a case, but also for providing the parties with further opportunities
to resume communication among them and to lead them to reach a final settlement
of their disputes. It would appear that Japan, in its first encounter with the UNCLOSDSM, learnt much about this inherent quality of the UNCLOS-DSM.
12.7.2 Japan’s Contributions
Japan has contributed to the work, function, and development of the UNCLOS-DSM.
First, Japan’s contributions may be found mostly in clarification of procedure. The
SBT case was the first time in history to establish an arbitral tribunal under Annex VII
of UNCLOS. In other words, there were procedural uncertainties before and during
such unprecedented case within the context of UNCLOS-DSM proceedings. Japan,
by actively participating in proceedings, furnished the tribunal with documents for
deepening the argumentation on the UNCLOS-DSM. In fact, the tribunal thanked
the contribution of the Parties by stating that:
The Parties, through their written pleadings and the oral arguments so ably presented on
their behalf by their distinguished Agents and counsel, have furnished the Tribunal with a
comprehensive and searching analysis of issues that are of high importance not only for
the dispute that divides them but for the understanding and evolution of the processes of
peaceful settlement of disputes embodied in UNCLOS and in treaties implementing or relating
to provisions of that great law-making treaty (emphasis added). 136
Second, Japan has participated in two cases on the prompt release procedure,
which resulted in the establishment and clarification of the jurisprudence of this
procedure. In this sense, it should be recalled that, after those two cases, there has
been no case of prompt release filed with ITLOS. This may mean, in a sense, that
the above two cases have contributed to the incremental clarification of procedural
uncertainties. On the other hand, it should be noted that the function of prompt release
appears to have been replaced by the procedure of provisional measures in several
recent cases.
References
Boyle, A. (2001). The Southern Bluefin Tuna Arbitration. International and Comparative Law
Quarterly, 50, pp. 451–452.
Churchill, R. R. (2000). ‘ITLOS, the Southern Bluefin Tuna cases (New Zealand v. Japan; Australia
v. Japan): Order for Provisional Measures of 27 August 1999)’, International and Comparative
Law Quarterly, 49, p. 986.
136 Award of 4 August 2000, para. 44.
249
signifies that the arbitration worked not only for establishing the winning party and
the losing party in a case, but also for providing the parties with further opportunities
to resume communication among them and to lead them to reach a final settlement
of their disputes. It would appear that Japan, in its first encounter with the UNCLOSDSM, learnt much about this inherent quality of the UNCLOS-DSM.
12.7.2 Japan’s Contributions
Japan has contributed to the work, function, and development of the UNCLOS-DSM.
First, Japan’s contributions may be found mostly in clarification of procedure. The
SBT case was the first time in history to establish an arbitral tribunal under Annex VII
of UNCLOS. In other words, there were procedural uncertainties before and during
such unprecedented case within the context of UNCLOS-DSM proceedings. Japan,
by actively participating in proceedings, furnished the tribunal with documents for
deepening the argumentation on the UNCLOS-DSM. In fact, the tribunal thanked
the contribution of the Parties by stating that:
The Parties, through their written pleadings and the oral arguments so ably presented on
their behalf by their distinguished Agents and counsel, have furnished the Tribunal with a
comprehensive and searching analysis of issues that are of high importance not only for
the dispute that divides them but for the understanding and evolution of the processes of
peaceful settlement of disputes embodied in UNCLOS and in treaties implementing or relating
to provisions of that great law-making treaty (emphasis added). 136
Second, Japan has participated in two cases on the prompt release procedure,
which resulted in the establishment and clarification of the jurisprudence of this
procedure. In this sense, it should be recalled that, after those two cases, there has
been no case of prompt release filed with ITLOS. This may mean, in a sense, that
the above two cases have contributed to the incremental clarification of procedural
uncertainties. On the other hand, it should be noted that the function of prompt release
appears to have been replaced by the procedure of provisional measures in several
recent cases.
References
Boyle, A. (2001). The Southern Bluefin Tuna Arbitration. International and Comparative Law
Quarterly, 50, pp. 451–452.
Churchill, R. R. (2000). ‘ITLOS, the Southern Bluefin Tuna cases (New Zealand v. Japan; Australia
v. Japan): Order for Provisional Measures of 27 August 1999)’, International and Comparative
Law Quarterly, 49, p. 986.
136 Award of 4 August 2000, para. 44.