Horowtiz, Deborah --- "Southern Bluefin Tuna Case (Australia and New Zealand v Japan) (Jurisdiction and Admissibility); The Catch of Poseidon's Trident: The Fate of High Secv Fisheries in the Southern Bluefin Tuna Case'" [2001] MelbULawRw 26; (2001) 25(3) Melbourne University Law Review 801

Southern Bluefin Tuna Case (Australia And New Zealand v Japan) (Jurisdiction And Admissibility)[*];

The Catch of Poseidon’s Trident: The Fate of High Seas Fisheries in the Southern Bluefin Tuna Case

INTRODUCTION

On 18 April 2001, Australia, New Zealand and Japan met for the Seventh Annual Session of the Commission for the Conservation of Southern Bluefin Tuna (‘Commission’).[1] Although they have now agreed to a joint scientific research program on how to conserve depleting stocks of southern bluefin tuna (‘SBT’),[2] they failed (as they have since 1994) to conclude a total allowable catch (‘TAC’) of tuna for 2001.[3] Until a TAC is formally set, each state will adhere to the national quotas last allocated by the Commission — but here’s the catch: Japan wants another 711 tonnes on top.[4]

Japan’s claim for an extra 711 tonnes of tuna is based on the SBT Case,[5] which is the subject of this case note. In that case, the majority of an arbitral tribunal (‘Tribunal’) convened under the United Nations Convention on the Law of the Sea[6] decided that it was without jurisdiction to hear the claim of Australia and New Zealand that Japan had breached international legal obligations by fishing tuna in excess of its TAC while conducting a unilateral ‘experimental fishing program’ (‘EFP’).[7] In addition, the Tribunal unanimously revoked[8] provisional measures implemented by the International Tribunal for the Law of the Sea (‘ITLOS’) which had required the parties to ensure that their annual catches did not exceed the TAC.[9] Specifically, ITLOS had ordered that, in calculating the annual catches for 1999 and 2000, account should be taken of the catch during 1999 that was part of an EFP — namely, 711 tonnes of tuna. With the ITLOS Order revoked by the SBT Case, Japan now wants the tuna back.[10]

This case note examines the SBT Case and its implications for fisheries management and international law. The principal argument of the case note is that the Tribunal adopted an unfavourable approach in interpreting the treaties central to the parties’ dispute and should have found that it had jurisdiction, particularly as a decision on the case’s merits would have assisted future tribunals formed — as this one was — under UNCLOS. However, it is conceded that, while the importance of the rule of law should have led to a finding of jurisdiction in the SBT Case, this may not always be so for subsequent tribunals.

The analysis in this case note is divided into three parts. Part II summarises the main factual and legal background to the SBT Case and argues that the ITLOS Order was correct in its finding that the Tribunal would prima facie have jurisdiction to hear the dispute. Part III examines the case itself. First, it considers the parties’ arguments. Second, it assesses the Tribunal’s decision and argues that the Tribunal used a three-pronged policy instrument — termed ‘Poseidon’s Trident’ — in reaching its conclusions. The majority’s findings are critiqued and it is argued that the majority based its holding of no jurisdiction on only two of the trident’s three policy prongs, namely ‘positivism’ and ‘caution’. Then the dissent is examined and is seen to have been influenced predominantly by the last of the policy prongs, ‘clarity’. It is argued that this third prong constitutes a sensible policy ground for assessing jurisdiction, and should have been a guiding force in the majority’s decision-making process. Part IV considers the implications arising from the Tribunal’s three-pronged policy instrument and from its decision that it had no jurisdiction. First, the implications for UNCLOS interpreters (lawyers and adjudicators) are addressed, with particular reference to the relationship of UNCLOS to the 1995 Straddling Stocks Agreement.[11] Second, implications for the development of fisheries management are suggested. Finally, the implications for the role of UNCLOS tribunals are considered and it is argued that this Tribunal, while having a function in encouraging the parties to settle the dispute themselves, could have played a more important part in perpetuating the rule of law. It is concluded that tribunals such as the one in the SBT Case should ‘catch’ their decisions using all three prongs of Poseidon’s Trident, and at least comprehensively consider (without necessarily favouring) the benefits of the rule of law in deciding whether or not to accept jurisdiction.

II BACKGROUND: DISPUTES OVER TUNA FISHING

A Scientific, Industrial and Diplomatic Background

The dispute in question began because of SBT’s status as a highly migratory and highly prized culinary delicacy. Traversing the high seas of the Southern Hemisphere and the exclusive economic zone and territorial waters of states such as Australia and New Zealand,[12] SBT is also on the main marketing menu as sashimi in Japan[13] — so much so that SBT stocks have diminished drastically since commercial harvesting began in the 1950s.[14] Despite the setting in 1989 of a TAC of 11 750 tonnes for the three states collectively, stocks continued to deplete. For this reason, it is particularly distressing that 11 750 tonnes is the exact TAC used today.[15] Indeed, the ongoing inability of the parties to negotiate a revised TAC provides a strong reason alone why the Tribunal ought to have found that it had jurisdiction, so that it could have set a new TAC itself.

The 11 750 tonne TAC has, as mentioned, been maintained since it was first created in 1994, pursuant to article 8(3) of the 1993 Convention for the Conservation of Southern Bluefin Tuna.[16] The fact that a TAC has been established (subject to revision), however, has not deterred Japan from seeking catches above its national quota of 6065 tonnes. After failing in a request for an additional 6000 tonnes and a joint EFP, in 1998 Japan commenced a unilateral, three-year EFP with an estimated catch of 1464 tonnes of SBT, despite strong protests from Australia and New Zealand.[17] This is how the legal battle began.

B Legal Background: Dispute Resolution Mechanisms under the

CCSBT and UNCLOS

The outcome of the legal dispute which emerged turned on a close analysis of the dispute resolution procedures under the CCSBT and UNCLOS. Before addressing the way in which the parties relied on these mechanisms, the relevant provisions are summarised in the following outline:

The CCSBT applies to resolve a dispute where the parties:

• article 16(1): consult to resolve the dispute by using:
• negotiation, inquiry, mediation or conciliation; or
• arbitration or judicial settlement; or
• ‘peaceful means of their own choice’; but
• article 16(2): if the methods in article 16(1) do not work, the parties must:
• with every party’s consent, refer the dispute to arbitration or the International Court of Justice (‘ICJ’); or
• without every party’s consent, continue to seek to resolve the dispute using the methods in article 16(1).

UNCLOS Part XV applies to resolve a dispute where the parties:

• article 283(1): have an ‘exchange of views’ towards settling by peaceful means; and
• article 280: ‘agree at any time’ to settle the dispute by ‘any’ peaceful means; and
• article 281(1):
• limb 1: they have so ‘agreed’ and no settlement has been reached; and
• limb 2: that ‘agreement’ ‘does not exclude any further procedure’.

Australia and New Zealand first responded to Japan’s actions by invoking article 16(1) of the CCSBT, in order to negotiate new terms for a joint EFP. However, ‘an accord was not achieved’[18] — far from it. Instead, Japan issued an ultimatum in May 1999 to the effect that, unless Australia and New Zealand accepted Japan’s proposal for a joint EFP, Japan would recommence its unilateral EFP.[19] Australia and New Zealand did not accept this proposal, seeing Japan’s EFP as a significant risk to the SBT stock.[20] They then issued their own ultimatum, stating that if Japan recommenced unilateral experimental fishing, they would regard this as a ‘termination by Japan of negotiations’ under article 16(1) of the CCSBT.[21] Japan ignored this notice and resumed its EFP on 1 June 1999, replying that it had no intention of terminating negotiations under the CCSBT.[22]

The next response of Australia and New Zealand was to argue, on 23 June 1999, that the dispute related to Japan’s obligations not only under the CCSBT, but also under UNCLOS, whose article 283(1) (a main step in triggering the application of UNCLOS) had been met because there had been the requisite ‘exchange of views’ between the parties.[23] Accordingly, Australia and New Zealand maintained, the UNCLOS dispute resolution mechanism could be used.[24] On the very same day, Japan once again ignored its opponents’ arguments and offered mediation under the CCSBT.[25] Australia said that it would agree, subject to Japan’s halting its unilateral EFP in the meantime.[26] Japan refused.[27] Consequently, Australia notified Japan that it had decided to commence compulsory dispute resolution under UNCLOS Part XV.[28] Australia and New Zealand requested the establishment of an arbitral tribunal pursuant to UNCLOS Annex VII[29] and, pending the constitution of this tribunal, sought the prescription by ITLOS of provisional measures (including the immediate cessation of Japan’s EFP) under UNCLOS article 290(5).[30]

C The Case before ITLOS and the Decision on Jurisdiction

In accordance with article 290(5), Australia and New Zealand had to convince ITLOS ‘that prima facie the tribunal which [was] to be constituted would have jurisdiction’ and that the urgency of the situation required the prescription of provisional measures. They relied on certain alleged breaches by Japan of duties to co-operate under the CCSBT and UNCLOS to conserve SBT stocks,[31] and encouraged ITLOS to order that the parties act consistently with the precautionary principle, pending the final decision.[32] Japan, in response, denied the operation of UNCLOS and claimed that the dispute settlement procedures under the CCSBT had not yet been exhausted.

On 27 August 1999, ITLOS issued an order finding that prima facie the Tribunal would have jurisdiction[33] and prescribing provisional measures.[34] ITLOS held that the matter was sufficiently urgent to make an order and stressed that the parties should ‘act with prudence and caution’ and ‘intensify their efforts to cooperate’ to ensure effective conservation measures.[35] More critically to this discussion, ITLOS also found that the CCSBT’s application did not exclude the parties’ right to invoke UNCLOS provisions, including the procedures under Part XV, s 2 (compulsory procedures entailing binding decisions), whose requirements had been fulfilled.[36]

What is interesting about the ITLOS Order is that, of the 22 judges who presided over the case, only one, Judge ad hoc Shearer, made any decisive comments on the issue of jurisdiction. While the other judges who submitted separate opinions focused on the questions of urgency, co-operation and caution, Judge ad hoc Shearer comprehensively dealt with all of the issues at hand. Yet, perhaps the conclusion to be drawn from the judges’ lack of commentary on jurisdiction is that they considered it indisputable that the Tribunal would prima facie have jurisdiction to hear the case on its merits, and that this was therefore not an issue needing elaboration. Indeed, it may be that some members of the Tribunal might have gone as far as Judge ad hoc Shearer did in saying that the jurisdiction of the Tribunal even went ‘beyond the level of being merely prima facie’ and should be ‘regarded as clearly established’.[37]

Unfortunately, the Tribunal, which was constituted shortly after the ITLOS decision, did not refer to Judge ad hoc Shearer’s opinion (albeit in obiter) that the Tribunal’s jurisdiction was indubitable, and simply found that ‘[i]n any event, the ITLOS holdings upheld no more than the jurisdiction prima facie of this Tribunal.’[38] It therefore remained open to the Tribunal to begin consideration of Japan’s preliminary objections to jurisdiction.[39]

III THE ARBITRAL TRIBUNAL: WIELDING POSEIDON’S TRIDENT

A Challenging the Tribunal’s Jurisdiction

Unsurprisingly, Japan’s main claims attacking the Tribunal’s jurisdiction were similar to those used before ITLOS, although with a few added technical twists. Its arguments, sprawled and ‘summarised’ across 22 sub-paragraphs of the Tribunal’s judgment, were, in brief, either that:

1. the dispute should be governed by the CCSBT, but not by UNCLOS, because the CCSBT is the lex specialis which supplants the UNCLOS provisions and whose article 16 had the capacity to deal with all the claims in the case;[40] or
2. if the dispute did arise under both conventions, only the CCSBT applied here because:

(a) pursuant to UNCLOS article 280, UNCLOS could not apply, since:

(i) the parties had chosen CCSBT article 16 as their ‘peaceful means’ of dispute settlement; and

(ii) choosing article 16 meant that that no other dispute system applied; or

(b) pursuant to UNCLOS article 281(1), UNCLOS could not apply, since:

(i) the parties had ‘agreed’ to use CCSBT article 16 as their ‘peaceful means’ (so the first limb of article 281(1) was negated); and

(ii) the ‘agreement’ under article 16 operated to ‘exclude any further procedure’, including the UNCLOS compulsory system (so the second limb of article 281(1) was negated);[41] or

(c) since some treaties (such as the CCSBT) do not contain compulsory adjudication provisions, while others (such as the Straddling Stocks Agreement[42]) do, the parties to the CCSBT ‘chose to avoid’ obligations for compulsory adjudication, such as those found under UNCLOS. To find otherwise would be to ‘disturb the host of dispute settlement provisions in treaties’ in cases relating to UNCLOS matters.[43]

In return, Australia and New Zealand relied on the findings of the ITLOS Order; the importance of the UNCLOS dispute settlement regime which should ‘not permit evasion’; and Japan’s potential breach of international obligations. ‘This is the old anarchy returned in procedural guise’, they said, commenting on Japan’s technical arguments.[44]

Procedural guise or not, however, there remained four central questions (from Japan’s submissions) to be answered by the Tribunal:

1. Could the CCSBT and UNCLOS operate in parallel to cover this dispute?
2. For the purposes of UNCLOS article 280 and the first limb of article 281(1), was the choice to use CCSBT article 16 an ‘agreement’?
3. For the purposes of the second limb of UNCLOS article 281(1), did the ‘agreement’ to use CCSBT article 16 ‘exclude’ UNCLOS procedures?
4. Did the CCSBT’s absence of compulsory adjudication amount to an intent to exclude UNCLOS compulsory adjudication?

The following sections analyse the approaches of the majority and dissent to these questions. At a superficial level, the case turned on wholly opposite answers to question 3. At a deeper level, the case turned on the policies underpinning the majority and dissenting judgments. It is argued that a policy of positivism underscored the majority’s findings, which stemmed from the view that states have a will and intent to ‘agree’ (as under UNCLOS articles 280 and 281) to settle disputes themselves.[45] Further, a policy of caution influenced this decision, in that the majority judges were resistant to interfering with the states’ activities. By contrast, a policy of clarity was what shaped the dissenting opinion: clear words, above the ability of states to come to their own ‘agreements’, were the decisive factor. The majority and dissenting opinions are considered below.

B The Majority: Striking with the Prongs of Positivism and Caution

1 Could the CCSBT and UNCLOS Operate in Parallel to Cover this Dispute?

In arguing the importance of UNCLOS as a regulatory treaty, Australia and New Zealand claimed that if Japan were correct in asserting that the CCSBT ousted the relevance of UNCLOS to the proceedings, then this would mean that the provisions of UNCLOS for mandatory dispute settlement are a ‘paper umbrella which dissolves in the rain’.[46] As it happens, they succeeded on this point. Rejecting Japan’s lex specialis argument (which said that the CCSBT eclipsed UNCLOS), the Tribunal accepted that ‘[t]here is frequently a parallelism of treaties’, such that ‘the conclusion of an implementing convention does not necessarily vacate the obligations imposed by the framework convention [UNCLOS] upon the parties to the implementing convention’.[47]

This finding, while not crucial to the case because the dissenter reached the same conclusion on this issue,[48] is instructive to the extent that it indicates that international agreements — such as the UN Charter — may, and often must, operate in tandem with other agreements.[49] However, the limitation in this part of the decision is that the lex specialis concept is not particularly well delineated: it is merely mentioned and then dismissed because ‘it is a commonplace of international law and State practice for more than one treaty to bear upon a particular dispute’.[50] As a result, parties wishing to rely on or negate a lex specialis rule have little to guide them except that the ‘general’ will often take precedence over the ‘specific’ in such cases.

2 For the Purposes of UNCLOS Article 280 and the First Limb of Article 281(1), Was the Choice to Use CCSBT Article 16 an ‘Agreement’?

In the Tribunal’s words, ‘[t]he Tribunal accept[ed] Article 16 of the 1993 Convention as an agreement by the Parties to seek settlement of the instant dispute by peaceful means of their own choice’,[51] thereby satisfying the ‘terms and intent’ of articles 280 and 281(1).[52] It was necessary for the Tribunal, in making such a finding, to show in clear terms why precisely article 16 was an ‘agreement’. It failed to do so. What it did do was justify its finding by focusing instead on the ‘peaceful means’ feature of the UNCLOS articles, citing article 16 as a ‘list of various named procedures of peaceful settlement’.[53] This ‘list’ could hardly be seen to be an ‘agreement’ in itself. Indeed, the Tribunal, without recognising it, implicitly negated the finding of the existence of an agreement by stating that ‘[n]o particular procedure in this list has thus far been chosen by the Parties for settlement of the instant dispute’.[54] Thus, despite holding that the UNCLOS ‘agreement’ requirements had been satisfied, the Tribunal did not point to any actual evidence of a settled agreement.

Had the Tribunal paid more regard to the applicants’ arguments and to the decision of Judge ad hoc Shearer in the ITLOS Order, it may have reached a different result. For, as Judge ad hoc Shearer commented,

this dispute resolution procedure is essentially circular, since if the parties are not agreed on reference to arbitration or judicial settlement the process of negotiation goes around and around, potentially without end. It was because of their frustration with the failure of Japan to agree to a binding dispute settlement procedure under this provision that Australia and New Zealand instituted proceedings under Part XV of the United Nations Convention on the Law of the Sea.[55]

Article 16 of the CCSBT, Judge ad hoc Shearer quite rightly observes, was a merry-go-round provision that forced its signatories into a fruitless negotiation cycle, and Australia and New Zealand were justified in resorting to the UNCLOS settlement system. This seems far from an ‘agreement’ to settle the dispute.

What can be seen, then, is that a glossed approach to Japan’s arguments had to be taken in order to establish the inadmissibility of UNCLOS. The Tribunal’s willingness to entertain this approach is probably due less to a belief in the logic of its answer to the ‘agreement’ question than to its underlying positivist motivation in allowing the parties to ‘agree’ for themselves. This policy argument is no better illustrated, however, than in the Tribunal’s answer to the third question.

3 For the Purposes of the Second Limb of UNCLOS Article 281(1), Did the ‘Agreement’ to Use CCSBT Article 16 ‘Exclude’ UNCLOS Procedures?

To negate the applicability of the UNCLOS compulsory settlement provisions, Japan had to demonstrate under the second limb of article 281(1) that its ‘agreement’ with Australia and New Zealand ‘exclude[d] any further procedure’.[56] The Tribunal found that, although CCSBT article 16 did ‘not expressly and in so many words exclude the applicability of any procedure, including the procedures of s 2 of Part XV of UNCLOS’, ‘the absence of an express exclusion of any procedure in Article 16 is not decisive’.[57]

‘Then what’, a future UNCLOS litigant or tribunal might ask, ‘is decisive’? The answer would seem to stem initially from the notion of consent under CCSBT article 16:

The ordinary meaning of these terms of Article 16 makes it clear that the dispute is not referable ... to arbitration, ‘at the request of any party to the dispute’ (in the words of UNCLOS Article 286). The consent in each case of all parties to the dispute is required. Moreover ... [t]he effect of [the] express obligation to continue to seek resolution of the dispute by the listed means of Article 16(1) is not only to stress the consensual nature of any reference of a dispute to either judicial settlement or arbitration. That express obligation equally imports, in the Tribunal’s view, that the intent of Article 16 is to remove proceedings under that Article from the reach of the compulsory procedures of section 2 of Part XV of UNCLOS, that is, to exclude the application to a specific dispute of any procedure of dispute resolution that is not accepted by all parties to the dispute.[58]

What the Tribunal says, then, is that the requirements for consent to refer the dispute anywhere, and to keep seeking to resolve the dispute, mean that it was ‘the intent’ of article 16 to keep dispute resolution well out of the bounds of compulsory adjudication elsewhere. This reading of the CCSBT was supported by the fact that article 16(3) provides its own arbitration system.[59]

To say that there might have been an intent specifically to exclude compulsory arbitration elsewhere, given the settlement options already available to the parties, seems reasonable. However, to conclude this as strongly as the Tribunal did, without detailed reference to extrinsic materials (such as Commission reports) could only create problems for future UNCLOS tribunal members attempting to interpret the interaction between a treaty with its own settlement system and the UNCLOS compulsory mechanism. Moreover, the Tribunal’s subsequent argument, that the presence of rules in UNCLOS excluding certain claims from the treaty’s compulsory jurisdiction implied that this claim, too, could be excluded,[60] also appears to be poorly sustained. Perhaps, because of these specific exclusions, the Tribunal could justifiably claim that UNCLOS ‘falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction entailing binding decisions’.[61] However, it seems a far cry from this comment for the Tribunal to conclude that other ‘implied’ exclusions from the compulsory jurisdiction of UNCLOS must also exist — particularly since this point was not even argued by Japan.

Given that the Tribunal’s formal decision-making process here is unconvincing, its conceivable underlying policy motivations might be considered again. Here, more than on the previous occasion, the notion of a state’s consent to a procedure, coupled with the idea that there was some ‘intent’ embedded in its treaty, would seem to support the contention that the Tribunal’s decision is underpinned by an inherent positivist policy motivation.

4 Did the CCSBT’s Absence of Compulsory Adjudication Amount to an Intent to Exclude UNCLOS Compulsory Adjudication?

The only substantive way in which the Tribunal answered this question was by reference to the

significant number of international agreements with maritime elements, entered into after the adoption of UNCLOS, [which] exclude with varying degrees of explicitness unilateral reference of a dispute to compulsory adjudicative or arbitral procedures.[62]

To this extent, there is obviously overlap with the answer to the preceding question, since the Tribunal is referring explicitly to treaties’ direct (implied or express) exclusions of compulsory adjudication processes. This can be distinguished from the mere absence in one treaty of its own compulsory adjudication system as a ground for seeking to establish an intent to exclude another treaty’s compulsory jurisdiction. In essence, the Tribunal never actually answered Japan’s last question: it simply explained it by assessing the rules on what happens when a treaty expressly or impliedly excludes another treaty’s compulsory adjudication. Absence of a compulsory system in a treaty would therefore have to fall under the category of an ‘implied’ rejection of the UNCLOS compulsory adjudication section.

The Tribunal was of the view that the existence of a body of treaties which contained ‘mutually agreed procedures’ such as those found under the CCSBT

tends to confirm the conclusion that States Parties to UNCLOS may, by agreement, preclude subjection of their disputes to section 2 procedures in accordance with Article 281(1). To hold that disputes implicating obligations under both UNCLOS and an implementing treaty such as the 1993 Convention — as such disputes typically may — must be brought within the reach of section 2 of Part XV of UNCLOS would be effectively to deprive of substantial effect the dispute settlement provisions of those implementing agreements which prescribe dispute resolution by means of the parties’ choice.[63]

The essence of the Tribunal’s decision is that parties should be able to create and apply their own dispute resolution systems. This, it is submitted, is the tenor of the Tribunal’s positivist policy approach to the case. Moreover, a note of caution is instilled at the end: to hold that the parties were subject to UNCLOS dispute resolution procedures here could mean that other parties would be subject to UNCLOS whenever their specific treaties did not expressly or impliedly exclude the compulsory mechanisms under UNCLOS. From the Tribunal’s perspective, this would be too heavy a burden to place on parties to conventions who wanted to follow their own system of dealing with disputes, and too precarious a finding to inflict on parties to come. The rationale is one of cautious non-interference with states’ rights. What can be seen, therefore, is the melding of two policies, those of positivism and caution. These two policies, adopted by the majority, are the first two prongs of Poseidon’s Trident. The following section examines the third.

C The Dissent of Justice Keith: The Clarity Prong Appears

It seems fitting that the judgment embracing what has been termed the ‘clarity’ policy approach to jurisdiction contains the clearest appraisal of the law relevant to the SBT Case. Decision aside, the explanation by Justice Keith, dissenting in the case,[64] is concise, well structured, and persuasive. The issue is its logic.

Ultimately, the only point on which Justice Keith disagreed with the majority in any full sense was the contention that the ‘agreement’ between the parties as constituted by CCSBT article 16 excluded any further agreement for the purposes of the second limb of UNCLOS article 281(1). Interestingly, Justice Keith did not feel convinced that CCSBT article 16 was an ‘agreement’, but because he conceded that there was ‘a good argument that in their diplomatic exchanges the Parties did agree to settle the dispute by negotiation’,[65] he was able to proceed with his interpretation of limb 2 of article 281(1).

In considering whether or not article 16 excluded the UNCLOS obligations, Justice Keith, like the majority, was forced into an analysis of whether the CCSBT article ‘impliedly exclude[d] the UNCLOS procedures’,[66] since there was no express provision to that effect. In the first main step of his analysis, Justice Keith considered the wording of article 281(1) — ‘exclude any further procedure’ — and concluded that ‘the phrase “envisages the possibility that the Parties ... may also specify that this procedure shall be an exclusive one and that no other procedure (including those under Part XV) may be resorted to”.’[67] His Honour felt that such ‘strong and particular wording would appear to be required’,[68] given the parallelism of the two treaties and the requirement under article 30(3) of the Vienna Convention on the Law of Treaties[69] that an earlier treaty applies ‘only to the extent that its provisions are compatible with those of the later treaty’. Pursuing this theme of the need for definite expression, his Honour went on to say that:

The need for clear wording to exclude the obligations to submit to the UNCLOS binding procedure, beyond the wording found in article 16, is further supported by other particular provisions of Part XV and by the pivotal role compulsory and binding peaceful settlement procedures played and play in the preparation and scheme of UNCLOS.[70]

This passage represents the essence of Justice Keith’s judgment. He stressed the ‘need for clear wording’ to exclude the UNCLOS compulsory jurisdiction, in direct contrast with the majority, whose approach had been to skirt around the absence of clear wording and imply an exclusion of UNCLOS dispute settlement into the CCSBT. Both the majority and the dissent focused on what was not in the CCSBT and also, interestingly enough, aimed to discern what the parties to the CCSBT had intended. The key difference between the judgments is that, when the majority, in positivist style, attempted to ‘read in’ the will of the states parties to the CCSBT, it did so largely in the absence of extrinsic materials. Justice Keith, by contrast, used other provisions of UNCLOS, as well as a variety of additional sources, to assess what the parties had originally intended (rather than, as the majority saw it, what they wanted now).

What follows in Justice Keith’s judgment may be seen to be a blend of positivist and clarity approaches, which is why the two (somewhat different) approaches can be seen to stem from the same instrument. Justice Keith looked to s 1 of Part XV of UNCLOS and observed that ‘the emphasis of the section is on the Parties’ freedom of choice of means’.[71] He then observed that the overall ‘structure itself supports the need for States to include clear wording in their agreements if they are to remove themselves from their otherwise applicable compulsory obligations arising under section 2’.[72] Extending this argument, he noted the requirement under s 3 of Part XV specifically to opt out of certain compulsory processes. While the majority saw the presence of this section as providing some implied portal by which a state could escape compulsory jurisdiction, Justice Keith viewed these specific exclusions as an indication that, where states had wanted to exclude the operation of UNCLOS, they had already provided so explicitly, with clear wording.[73] Finally — and this is what really separated his judgment from that of the majority — Justice Keith referred to ‘the widely stated and shared understanding, expressed throughout all the stages of the Conference which prepared [UNCLOS], about the critical central place of the provisions for the peaceful settlement of disputes’.[74] While the majority had drawn somewhat loose analogies with the Antarctic Treaty,[75] Justice Keith sensibly looked to the origins of the very treaty being interpreted. What he recognised may actually amount to a dismissal in part of the positivist conception of states, since

[t]he States at that Conference moved decisively away from the freedom which they generally have in their international relations not to be subject in advance to dispute settlement processes, especially processes leading to binding outcomes.[76]

This is an example of one of the ways in which UNCLOS has impinged on the longstanding freedom of the high seas.[77] The passage indicates that, in interpreting whether or not the UNCLOS compulsory settlement provisions apply, the positivist or cautious approach will give way to the clarity approach, although the ‘delicate equilibrium of the compromise’ between states will still be present.[78] Consequently, the objects of UNCLOS, ‘along with the plain wording’ of the UNCLOS and CCSBT articles, led Justice Keith to his conclusion that the CCSBT ‘does not “exclude” the jurisdiction of this tribunal in respect of disputes arising under UNCLOS.’[79]

So there we have it: three separate but interlocking policy approaches and, as one commentator has put it, two ‘radically different interpretations of the treaty’.[80] No more radically different, though, than when the following passage from Justice Keith, whose

reasons for concluding that article 16 does not exclude any further procedure and in particular the compulsory binding procedures under section 2 of Part XV are to be found in the ordinary meaning of the terms of the two treaties read in their context and in the light of their objects and purposes[81]

is compared with the following words of the majority:

The ordinary meaning of these terms of Article 16 makes it clear that ... the intent of Article 16 is to remove proceedings under that Article from the reach of the compulsory procedures of section 2 of Part XV of UNCLOS, that is, to exclude the application to a specific dispute of any procedure of dispute resolution that is not accepted by all parties to the dispute.[82]

These antithetical opinions on an identical issue toll the ringing irony of the SBT Case: that, even on the ‘ordinary meaning’ of words, the Tribunal could not reach agreement.

Anyone attempting to draw ‘principles’ from the Tribunal’s decision may have trouble doing so. The majority produced a judgment that was thin on logic and dense in positivist, cautious policy. More can be gained from Justice Keith’s dissent and ‘clarity’ approach, but when his construction of the ‘ordinary meaning’ of words wholly conflicts with that of four other judges, what hope is there for judges in the future? Ultimately, all we have been left with is a three-pronged policy instrument, and no clear rules. The Tribunal produced Poseidon’s Trident, but never showed us how or why to use it. With this in mind, the SBT Case does not augur well for anyone trying to interpret the ambit of a convention; nor for fisheries wishing to collect the spoils of the high seas; nor for future UNCLOS tribunals which have to make decisions about disputes. The next section will consider the implications of the case for each of these interested parties.

IV IMPLICATIONS: PUTTING THE THIRD PRONG BACK

INTO THE TRIDENT

A Implications for UNCLOS Analysts

Thus far, three modes of dealing with conflicting clauses in treaties have been observed: those of positivism, caution and clarity — with each forming one prong of the jurisdiction-determining trident. The positivist and the cautious approaches led to jurisdiction being denied in the SBT Case. A combination of the positivist and clarity approaches saw jurisdiction asserted. However, interpreting the ‘ordinary meaning’ of words proved a disaster in the case. What lawyers advising their clients are left with, then, is not only an absence of a decision on the merits of the case, but also a virtual absence of rules on how to resolve disputes where the settlement procedures of a particular treaty come up against those of UNCLOS. With this in mind, future UNCLOS analysts attempting to discern the ambit of the treaty’s dispute settlement system may take into account the following, but few, implications which can be drawn from the SBT Case:

• UNCLOS will almost always apply in tandem with a particular treaty on similar terms.
• A tribunal may see the presence of a settlement system (even if slightly vague or circular) in a particular treaty as impliedly ousting the compulsory jurisdiction of UNCLOS.
• A tribunal might, however, look to the wording of the treaty, to the presence of specific exclusions in UNCLOS, and to extrinsic material,[83] and decide that there would be jurisdiction under UNCLOS.
• States parties to conventions whose provisions (such as those in the CCSBT) may or may not oust the compulsory jurisdiction of UNCLOS could validly amend the treaty by agreement under VCLT article 39 in order to reconcile the provisions of the treaties and specifically choose one system over another.[84]
• Drafters of conventions involving the law of the sea should make sure that the dispute settlement provisions are in extremely clear terms — perhaps with a clause stating that, after a specifically prescribed amount of time, certain definite events (such as automatic arbitration) should occur.
• Drafters of conventions may even wish to state that the jurisdiction of UNCLOS should apply in any event, to avoid conflicts such as those found in the SBT Case.

In relation to the last suggestion, it is noteworthy that this is exactly what has happened in the Straddling Stocks Agreement.[85] As Judge Treves wrote in the ITLOS Order, ‘[e]ven though this Agreement is independent from the United Nations Convention on the Law of the Sea, it has remarkable links with it’.[86] In particular, article 4 of the Straddling Stocks Agreement provides that that agreement ‘shall be interpreted in the context and in a manner consistent with [UNCLOS]’. Furthermore, article 30(2) adopts mutatis mutandis, for the settlement of disputes concerning the interpretation and application of the Straddling Stocks Agreement, the provisions set out in Part XV of UNCLOS.[87]

As at 27 August 2001, 29 of the required 30 states had ratified the Straddling Stocks Agreement, which has therefore not yet come into force.[88] When it does, as the Tribunal observed, it

should, for States Parties to it, not only go far towards resolving procedural problems that have come before this Tribunal but, if the Convention is faithfully and effectively implemented, ameliorate the substantive problems that have divided the Parties.[89]

As far as those parties are concerned, Australia and New Zealand have ratified the Straddling Stocks Agreement, but Japan remains only a signatory at this stage. One can be sure, though, that the Straddling Stocks Agreement will prove very influential in the future interpretation and settlement of UNCLOS-related disputes.

B Implications for Fisheries Management and Disputes

We have already seen that the Straddling Stocks Agreement will play a key role in regulating migratory and straddling stocks. In addition, the case law such as that stemming from the SBT Case will be vital in guiding fisheries on how to protect stocks, but at the same time maintain their commercial interests without breaching international obligations. Lessons from the recent Patagonian toothfish incident[90] are enough to explain this, not to mention Japan’s ‘scientific’ whaling, where ‘experimental’ specimens eventually found themselves on Japanese dinner plates. It is clear that fisheries have to tread carefully, as a fair degree of cynicism about their activities can emerge in the political domain. Take, for example, this Greenpeace campaign against the Japanese government in the 1980s:

Question: How do you define a Japanese fishing researcher?

Answer: Hungry![91]

With this in mind, fisheries need to know just what their international obligations are. A recent article by Professor Gillian Triggs has considered the ITLOS Order and another case, Shrimp–Turtle,[92] to see whether obligations developed in these cases could be applied successfully to Japan’s conceivably illegitimate ‘scientific’ whaling.[93] In particular, the article examines emerging ‘abuse of right’ and ‘good faith’ doctrines and finds them to be ‘recognised norms of general international law’ that are available to be applied by tribunals.[94] From the ITLOS Order, Triggs distils ‘persuasive authority for future fisheries disputes’ to the effect that there is ‘an international law standard requiring the exercise of prudence and caution to prevent serious risks of depletion of fisheries stocks’.[95]

Fisheries’ obligations, then, could well entail, amongst other things, exercising their treaty rights in a bona fide manner (the ‘abuse of right’ principle from Shrimp–Turtle) and acting with caution to conserve stocks. Had the SBT Case been decided on its merits, therefore, Australia and New Zealand might have had recourse to an argument that Japan was not exercising its treaty rights in good faith. Alas, as we know, the Tribunal never came to this point. Thus, as Triggs herself pointed out (writing before the Tribunal’s decision was handed down), because in the ITLOS Order the substantive legal issues had not yet come before the Tribunal, the order ‘should be employed with caution’.[96]

This does not leave fisheries or their lawyers in an enviable position. Not only has the SBT Case failed to provide them with clear procedural rules (as to when UNCLOS compulsory settlement provisions will apply), it has also failed to advance the jurisprudence on the substantive rules which emerged from the ITLOS Order and the Shrimp–Turtle case. The only implication that can be drawn from the SBT Case for fisheries management and dispute resolution is that parties will have to resort to the former cases to find out what rules bind them.

C Implications for the Role of UNCLOS Tribunals

Triggs was probably correct in asserting that ‘[t]he jurisdictional findings of the ITLOS in the Southern Bluefin Tuna Cases indicate that this tribunal will be a significant means for judicial resolution of high seas fisheries disputes in the future’.[97] ITLOS had already made a sensible finding in the M/V ‘Saiga’ Case,[98] and its decision in the ITLOS Order was arguably appropriate too. The implication, therefore, is that the role of ITLOS in the future will be an important, and hopefully fruitful, one.

Less could possibly be said about the role of the next UNCLOS arbitral tribunal — at least from what we saw in the SBT Case. The Tribunal there was ‘conscious of its position as the first arbitral tribunal to be constituted under Part XV’.[99] Not only was this the first time a Part XV tribunal has been formed: it was also, according to Barbara Kwiatkowska, ‘the first time that an arbitral tribunal has declined to exercise jurisdiction over the merits of an inter-state dispute’.[100] Although this claim seems doubtful, it is true that it is very rare for a tribunal hearing an international dispute to refuse to adjudicate a case on its merits.[101] This fact may stem from a willingness of tribunals to come to a decision on jurisdiction while bearing in mind the importance of the rule of law. The use of the rule of law as a foundation for deciding jurisdiction has certainly played a part in ICJ decisions — the Nicaragua Case[102] is the best evidence of that — so the Tribunal in the SBT Case could have followed the same pattern. Its failure to do so is disappointing since, as the foregoing implications have shown, it could have shaped the law of high seas fisheries for cases to come.

Naturally, though, there are cases in which it may not necessarily serve the interests of the rule of law for a court or tribunal to find that it has jurisdiction where arguably it should not, for to do so could actually undermine the international legal order.[103] Take, for example, the Nuclear Tests Case,[104] the NATO–

Kosovo Case[105] and the East Timor Case,[106] from which much valuable law could have emerged on the legality of atmospheric testing; on the right of states to invoke humanitarian intervention; and on the right of annexed territories to have the permanent sovereignty over their natural resources confirmed. Nonetheless, there were several reasons for not supplying merits decisions in these cases, and these are all arguments on which a supporter of the Tribunal’s decision in the SBT Case could rely. Firstly, finding jurisdiction may undermine confidence in the international legal system. Secondly, a dispute may be seen to be too ‘political’ to be suitable for determination by a judicial or arbitral body. In the SBT Case, for instance, both the procedural and substantive arguments had a politically sensitive nature. As far as procedure is concerned, it had been remarked by Judge ad hoc Shearer that ITLOS had ‘behaved less as a court of law and more as an agency of diplomacy’[107] — and this, conceivably, is outside the scope of a tribunal’s powers. As for substance, if a state were to argue an ‘abuse of right’ discourse before a tribunal, this could be a ‘politically risky strategy for one nation to adopt in its relations with another’,[108] and one in which a tribunal may not want to become involved. Finally, there is always the possibility that, even where a tribunal or court makes a finding, it will not necessarily be implemented by the state concerned.

What, then, are the implications from the SBT Case regarding the role of UNCLOS tribunals? Firstly, ITLOS has shown itself — albeit in only two cases — to be a reliable arbiter of sea disputes. Secondly, the first ad hoc tribunal under Part XV has shown that it is not. That tribunal should have adopted, in addition to its positivism and caution, a strong ‘clarity’ policy and a motivation to develop rules on fisheries management, for the assistance of future UNCLOS interpreters. Finally, although the Tribunal in the SBT Case should have paid more regard to the rule of law, this does not necessarily mean that future UNCLOS (or, indeed, any) tribunals should necessarily do the same — for to wield Poseidon’s Trident in too unruly a fashion could damage the law of the sea irreparably.

V CONCLUSION

Australia and New Zealand won the first part of the SBT war. But when the decision of the Tribunal in the SBT Case was handed down, they were forced back into the negotiation room with Japan, and have now been forced into a joint EFP. This would appear to be the only major drawback of the Tribunal’s failure to decide the case on its merits, except that its decision means that subsequent parties to fisheries disputes have no more principles than before on which to rely. The Tribunal, therefore, missed an ideal opportunity to establish a judicial regime on fisheries management. As a result, all we have now is an instrument for rejecting jurisdiction on policy grounds — with no explanation as to when to apply it.

What, then, of the fate of high seas fisheries? That will depend on how the next sea tribunal hurls its analytical instrument. What can only be hoped is that the tribunal aims to ‘catch’ its next decision using all three prongs of Poseidon’s Trident, and that it directs that trident further from the coast of independent party negotiations and closer to the shore of the rule of law. Where the trident lands, however, is in the lap of the gods.

DEBORAH HOROWITZ[*]

[*] (2000) 39 ILM 1359 (‘SBT Case’).

[1] Australia, New Zealand and Japan have been members of the Commission since 1994. Observers from the Republic of South Africa, South Korea, Taiwan and Indonesia were also involved in the negotiations, but of these only South Korea is a member of the Commission: Warren Truss, Commonwealth Minister for Agriculture, Fisheries and Forestry, Korea to Join the Commission for the Conservation of Southern Bluefin Tuna, Press Release, No AFFA00/208WT (17 November 2000) 1.

[2] Commission, Report of the Seventh Annual Meeting of the Commission (2001) <http://www.

home.aone.net.au/ccsbt/CCSBT7Main1.html> [12] at 31 October 2001 (copy on file with author) (‘Commission Report’).

[3] The parties did recognise, however, that the 2001 stock assessment process would be completed prior to the Eighth Annual Session, so that a TAC could be adopted for 2002: ibid [47].

[4] Ibid [49].

[5] (2000) 39 ILM 1359.

[6] Opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) (‘UNCLOS’).

[7] SBT Case (2000) 39 ILM 1359, 1393 (Judges Schwebel, Feliciano and Tresselt and Professor Yamada; Justice Keith dissenting). Unlike a permanent court, the members of the Tribunal do not all bear the same official title. In this case note, the individual titles which appear in the SBT Case itself have been used when referring to the members of the Tribunal.

[8] Ibid (Judges Schwebel, Feliciano and Tresselt and Professor Yamada), 1401 (Justice Keith).

[9] Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624, 1635 (‘ITLOS Order’).

[10] Commission Report, above n 2, [49]. According to Jonathon Barrington, Manager, International Tuna Program, Fisheries and Aquaculture, Department of Agriculture, Fisheries and Forestry — Australia: ‘Australia and New Zealand do not accept Japan’s legal interpretations of the relevant part of the Arbitral Tribunal’s Award. Australia and New Zealand are still awaiting follow-up diplomatic action by Japan on the “711 tonnes” issue’: Email from Jonathon Barrington to Deborah Horowitz, 17 May 2001 (copy on file with author).

[11] Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 5 December 1995, 34 ILM 1542 (not yet in force).

[12] SBT Case (2000) 39 ILM 1359, 1362; Richard Tanter, ‘Death by Sashimi — The Survival of the Southern Bluefin Tuna’ (2000) 14 Arena Journal 31, 32.

[13] Tanter, above n 12, 32.

[14] SBT Case (2000) 39 ILM 1359, 1362. In 1961, the global catch reached a maximum of 81 000 tonnes. By the 1980s, however, over-fishing had reduced the parental stock to 70% of its 1960 level.

[15] At the Seventh Annual Meeting of the Commission, no change was made to the previously set TAC. This TAC will remain in place until a new one is adopted at the Eighth Annual Meeting of the Commission: Commission Report, above n 2, [46]–[47].

[16] Opened for signature 10 May 1993, 1819 UNTS 359 (entered into force 20 May 1994) (‘CCSBT’).

[17] SBT Case (2000) 39 ILM 1359, 1367.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Ibid. The origin of this compulsory dispute resolution system is UNCLOS art 287(3), which provides that: ‘A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.’ The source of the jurisdiction of a tribunal formed under Annex VII can then be found in art 288(1), which states that: ‘A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of [UNCLOS]’. This jurisdiction is extended by art 288(2) to cover ‘any dispute concerning the interpretation or application of an international agreement related to the purposes of [UNCLOS]’. Australia was relying, therefore, on art 288 as the foundation of the jurisdiction of the Tribunal in this case.

[29] SBT Case (2000) 39 ILM 1359, 1368. See also UNCLOS art 287(3).

[30] SBT Case (2000) 39 ILM 1359, 1367.

[31] ITLOS Order (1999) 38 ILM 1624, 1627–9. Australia and New Zealand cited UNCLOS art 64, which requires states to ‘co-operate ... with a view to ensuring conservation and promoting the objective optimum utilization’ of highly migratory species. That the provisions of the CCSBT were drafted in the light of UNCLOS is very evident in this instance, since the CCSBT itself speaks of its objective as being ‘to ensure, through appropriate management, the conservation and optimum utilization of southern bluefin tuna’: art 3. This point was not specifically raised by the applicants in their statement of claim, but adds force to the argument that the provisions of the CCSBT were meant to be read in the context of UNCLOS. Australia and New Zealand relied in addition on alleged breaches by Japan of duties under arts 117, 118 and 119 of UNCLOS in failing to take measures to conserve high seas resources by conducting its unilateral EFP.

[32] ITLOS Order (1999) 38 ILM 1624, 1629.

[33] Ibid 1633.

[34] Ibid 1635.

[35] Ibid 1634. The separate opinions of the judges in this case are helpful in determining grounds for establishing urgency, the prudence approach and the duty to co-operate. On urgency, see at 1640 (Judge Laing), 1644–5 (Judge Treves), 1652–3 (Judge Vukas, dissenting). On acting with prudence and caution, see at 1639 (Judge Laing). On the duty to co-operate to ensure conservation, see at 1638 (Vice-President Wolfrum, Judges Caminos, Marotta Rangel, Yankov, Anderson and Eiriksson), 1638 (Judge Warioba, dissenting). Note also considerations of whether the precautionary principle (or ‘approach’) is a binding principle of customary international law: at 1640–3 (Judge Laing), 1645 (Judge Treves), 1650 (Judge ad hoc Shearer).

[36] Ibid 1633.

[37] Ibid 1647 (emphasis added). For further commentary on Judge ad hoc Shearer’s decision on jurisdiction, see below Part III(B)(2). Although Judge ad hoc Shearer’s opinion on jurisdiction might be criticised as going beyond what he was required to do in that case (to find just prima facie jurisdiction), nonetheless his comments could be valuable to any party pursuing provisional measures under UNCLOS, and also could have been valuable to the majority of the Tribunal. Indeed, as Judge ad hoc Shearer himself pointed out, given that Japan indicated that it would challenge the jurisdiction of the Tribunal at the commencement of its proceedings, an investigation of jurisdiction was important: at 1647. Japan had challenged the Tribunal’s jurisdiction in its statement of response, issued on 9 August 1999: at 1630.

[38] SBT Case (2000) 39 ILM 1359, 1376 (emphasis added).

[39] Japan filed its memorial on its preliminary objections to jurisdiction on 11 February 2000 and Australia and New Zealand filed a joint reply on jurisdiction on 31 March 2000. The parties presented their oral arguments on 7 and 8 May 2000, and rebuttal on 10 and 11 May: ibid 1360. From 7 to 11 May 2000, the parties presented their arguments at the World Bank headquarters, where the hearing on jurisdiction was held before the Tribunal: at 1361. The proceedings were held there because the parties had appointed as their registrar the International Centre for Settlement of Investments Disputes (‘ICSID’), whose facilities at the World Bank were used: at 1360.

[40] Japan also argued that only the CCSBT was relevant because Australia and New Zealand knew that the CCSBT alone applied, since they had used it first, without mentioning UNCLOS, and then relied on UNCLOS to avoid CCSBT art 16. This claim was not addressed by the Tribunal, which is unsurprising, given that the argument is very contrived: Australia and New Zealand were required under art 16(1) to attempt to resolve the dispute under CCSBT art 16(1) first, before seeking alternative resolution if this did not work. Japan further argued that the CCSBT is the lex posterior and applied before the parties ratified UNCLOS, which did not change treaty relations when it came into force. The Tribunal dealt with this indirectly by reinforcing, as Australia and New Zealand had argued, the importance of UNCLOS as a framework convention, regardless of the timing of the treaties: ibid 1387–8.

[41] Japan further claimed that the CCSBT was still the applicable treaty here because CCSBT art 16(2) requires ‘the consent of all the parties’ for a matter to go to arbitration and such consent was absent, given that the possibilities under art 16 had not been exhausted: SBT Case (2000) 39 ILM 1359, 1378.

[42] Opened for signature 5 December 1995, 34 ILM 1542 (not yet in force).

[43] SBT Case (2000) 39 ILM 1359, 1377–8.

[44] Ibid 1382.

[45] The argument that the Tribunal took a ‘positivist’ approach is founded on the traditional Hegelian notion of positivism in international law — namely, that if a state can be viewed as possessing a ‘metaphysical reality’ then it can also be regarded as having a ‘will’: see I A Shearer, Starke’s International Law (11th ed, 1994) 21.

[46] SBT Case (2000) 39 ILM 1359, 1384.

[47] Ibid 1388. The ‘parallelism of treaties’ finding reflects Judge ad hoc Shearer’s earlier view in the ITLOS Order (1999) 38 ILM 1624, 1648 that ‘the separate dispute resolution procedures provided for by article 16 of the CCSBT can be regarded as establishing a parallel but not exclusive dispute resolution procedure’.

[48] SBT Case (2000) 39 ILM 1359, 1399 (Justice Keith).

[49] Ibid 1388.

[50] Ibid 1387.

[51] Ibid 1388.

[52] Ibid 1389.

[53] Ibid.

[54] Ibid.

[55] ITLOS Order (1999) 38 ILM 1624, 1647–8 (emphasis added).

[56] SBT Case (2000) 39 ILM 1359, 1389.

[57] Ibid.

[58] Ibid (emphasis added).

[59] Ibid.

[60] Ibid 1390. The Tribunal relied on arts 297 and 298 of UNCLOS, neither of which directly applied to the facts in this case, since they concern different subject matter: the exercise by a coastal state of its sovereign rights or jurisdiction (art 297); and disputes relating to sea boundaries, military activities and the UN Security Council (art 298).

[61] SBT Case (2000) 39 ILM 1359, 1390.

[62] Ibid 1391.

[63] Ibid.

[64] Even though the document in which Justice Keith’s judgment appears is referred to as his ‘separate opinion’ and has its own paragraph numbering, this case note has referred to his decision as the ‘dissent’ because his Honour ‘voted in favour of holding that [the] Tribunal [had] jurisdiction and against the contrary decision of the Tribunal’: ibid 1401.

[65] Ibid 1396.

[66] Ibid 1397 (emphasis added).

[67] Ibid 1398–9, quoting Shabtai Rosenne and Louis Sohn (eds), United Nations Convention on the Law of the Sea 1982: A Commentary (1989) vol 5, [281.5].

[68] SBT Case (2000) 39 ILM 1359, 1399.

[69] Opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (‘VCLT’).

[70] SBT Case (2000) 39 ILM 1359, 1399 (emphasis added).

[71] Ibid.

[72] Ibid (emphasis added).

[73] Ibid. Justice Keith also correctly noted, as the majority failed to observe, that ‘the general run of fisheries disputes, such as the present, is not subject to those limitations and exceptions’. Critically here, the CCSBT was silent on excluding other provisions of UNCLOS or other agreements.

[74] SBT Case (2000) 39 ILM 1359, 1399.

[75] Opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961).

[76] SBT Case (2000) 39 ILM 1359, 1399–400.

[77] Other examples of the way in which the freedom of the high seas has been whittled down include: the extension of the territorial seas and contiguous zones; the creation of exclusive economic zones; and the confirmation of the continental shelf regime.

[78] SBT Case (2000) 39 ILM 1359, 1400, citing Ambassador H S Amerasinghe, President of the Third Conference on the Law of the Sea, Informal Single Negotiating Text Part IV Presented by the President of the Conference: Addendum — Settlement of Disputes, [6], UN Doc A/CONF.62/WP.9/Add.1 (1976), reproduced in Renate Platzöder (ed), Third United Nations Conference on the Law of the Sea: Documents (1982) vol 1, 65, 66.

[79] SBT Case (2000) 39 ILM 1359, 1401.

[80] Ryszard Piotrowicz, ‘The Australia/New Zealand–Japan Fisheries Dispute: Tuna Back on the Menu’ (2000) 74 Australian Law Journal 650, 652.

[81] SBT Case (2000) 39 ILM 1359, 1397 (emphasis added).

[82] Ibid 1389 (emphasis added).

[83] The use of extrinsic material is permissible to confirm a conclusion reached by normal methods of construction: South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Merits) [1966] ICJ Rep 6, 43–4; Shearer, above n 45, 437.

[84] VCLT art 39 provides that ‘[a] treaty may be amended by agreement between the parties’, while art 40 lays down the specific rules governing the amendment of multilateral treaties.

[85] Opened for signature 5 December 1995, 34 ILM 1542 (not yet in force).

[86] (1999) 38 ILM 1624, 1645. See also Tullio Treves, ‘The Settlement of Disputes According to the Straddling Stocks Agreement of 1995’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (1999) 253.

[87] Article 30(2) provides:

The provisions relating to the settlement of disputes set out in Part XV of the Convention apply mutatis mutandis to any dispute between States Parties to this Agreement concerning the interpretation or application of a subregional, regional or global fisheries agreement relating to straddling fish stocks or highly migratory fish stocks to which they are parties, including any dispute concerning the conservation and management of such stocks, whether or not they are also Parties to the Convention.

[88] United Nations, Status of the United Nations Convention on the Law of the Sea, of the Agreement Relating to the Implementation of Part XI of the Convention and of the Agreement for the Implementation of the Provisions of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (2001) <http://www.un.org/

Depts/los/reference_files/status2001.pdf> at 24 September 2001 (copy on file with author).

[89] SBT Case (2000) 39 ILM 1359, 1392. Just what the precise interaction between the Straddling Stocks Agreement and the CCSBT would be was not considered by the Tribunal; the Straddling Stocks Agreement may well have applied to the dispute, but may not necessarily have superseded the provisions of the CCSBT.

[90] See Bergensbanken ASA v The Ship ‘Aliza Glacial’ [1998] FCA 1642 (Unreported, Ryan J, 17 December 1998). See also Melissa Fyfe, ‘Poachers Lose in the Sail of the Century’, The Age (Melbourne), 6 May 2001, 3.

[91] Cited in Tanter, above n 12, 31.

[92] World Trade Organization Appellate Body, Report of the Appellate Body: United States — Import Prohibition of Certain Shrimp and Shrimp Products, AB-1998-4, Doc No WT/DS58/AB/R (12 October 1998).

[93] Gillian Triggs, ‘Japanese Scientific Whaling: An Abuse of Right or Optimum Utilisation?’ (2000) 5(1) Asia Pacific Journal of Environmental Law 33.

[94] Ibid 41.

[95] Ibid 43.

[96] Ibid.

[97] Ibid 58.

[98] The M/V ‘Saiga’ (No 2) Case (Saint Vincent and the Grenadines v Guinea) (1999) 38 ILM 1323.

[99] SBT Case (2000) 39 ILM 1359, 1385.

[100] Barbara Kwiatkowska, ‘The Australia and New Zealand v Japan Southern Bluefin Tuna (Jurisdiction and Admissibility) Award of the First Law of the Sea Convention Annex VII Arbitral Tribunal’ (2001) 16 International Journal of Marine and Coastal Law 239, 240.

[101] This may, of course, have something to do with the fact that most inter-state arbitrations are arranged ex post facto by agreement (compromis d’arbitrage) and by joint submission to an arbitral tribunal, rather than by unilateral submission via an arbitration clause in a treaty.

[102] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction and Admissibility) [1984] ICJ Rep 392.

[103] The author would like to thank Mr Chester Brown for the insightful comments that he made in relation to the rule of law issue: Email from Chester Brown to Deborah Horowitz, 24 May 2001 (copy on file with author).

[104] (Australia v France; New Zealand v France) (Jurisdiction and Admissibility) [1974] ICJ Rep 253.

[105] Legality of Use of Force Cases (Yugoslavia v Belgium; Yugoslavia v Canada; Yugoslavia v France; Yugoslavia v Germany; Yugoslavia v Italy; Yugoslavia v Netherlands; Yugoslavia v Portugal; Yugoslavia v Spain; Yugoslavia v United Kingdom; Yugoslavia v United States of America) (Provisional Measures) [1999] ICJ Rep 1.

[106] Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 90.

[107] ITLOS Order (1999) 38 ILM 1624, 1649.

[108] Triggs, above n 93, 39.

[*] Student of Arts/Law, The University of Melbourne. The author would like to thank Professor Gillian Triggs for her helpful comments during the preparation of this case note. The author would also like to thank Mr Cameron Hepburn, Mr Chester Brown and Ms Rachel Baird for the useful suggestions that they made on earlier drafts of this case note.