1982 United Nations Convention on the Law of the Sea

IN THE DISPUTE CONCERNING SOUTHERN BLUEFIN TUNA

AUSTRALIA V JAPAN

STATEMENT OF CLAIM AND

GROUNDS ON WHICH IT IS BASED

UNCLOS ANNEX VII ARBITRATION STATEMENT OF CLAIM

1. Pursuant to Article 286 of the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’), Australia requests the submission of its dispute with Japan over southern bluefin tuna (Thunnus maccoyii, hereafter ‘SBT’) to an arbitral tribunal constituted in accordance with Annex VII to UNCLOS. Australia has given Japan written notification by diplomatic Note of this action in accordance with Annex VII, Article 1. New Zealand has given a similar notification and is commencing parallel proceedings seeking essentially the same relief. Australia and New Zealand are parties in the same interest in this dispute. Accordingly, they have agreed to appoint one member of the tribunal, the Right Honourable Justice Sir Kenneth Keith KBE, Judge of the Court of Appeal of New Zealand, pursuant to Annex VII, Article 3(g).

SUBJECT MATTER OF THE DISPUTE

2. The dispute relates to Japan’s failure to conserve, and to cooperate in the conservation of, the SBT stock, as manifested, inter alia, by its unilateral experimental fishing for SBT in 1998 and 1999. It concerns the interpretation and application of certain provisions of UNCLOS, specified in more detail in this Statement of Claim. The arbitral tribunal will also be asked to take into account, in that regard, the provisions of the 1993 Convention for the Conservation of Southern Bluefin Tuna (‘the 1993 Convention’: see Annex 1) and the parties’ practice in relation to that Convention, as well as their obligations under general international law, in particular the precautionary principle.

THE FACTS

The SBT species

2 3. SBT is a valuable, highly migratory species of pelagic fish and is included in the list of highly migratory fish species in Annex I to UNCLOS. SBT is considered to have a broad distribution across the oceans of the Southern Hemisphere. This species ranges widely across the high seas regions of the Southern Hemisphere but also traverses the exclusive economic zones and territorial seas of countries including Australia and New Zealand, but not Japan.

4. It is generally accepted that the global population of SBT comprises a single stock, with a single spawning ground in the waters south of Indonesia between approximately 7oS and 20oS. Juveniles are harvested as early as one year old. See the maps of distribution, migratory patterns and fishing areas . (XR)

5. While there is some uncertainty regarding the mean age of maturity for SBT, it appears to be not less than 12 years and may be older. The average age of the spawning stock is more than 20 years, and the fish can live to 40 years or more. As a long-lived species with a lengthy pre-maturity period and virtually life-long exposure to fishing pressure, the stock is slow to recover from depletion relative to other shorter lived species, including most other species of tuna.

Summary of SBT catch history and its effect on the stock

6. Significant commercial harvest of SBT began in the early 1950s. In 1961, the global SBT catch peaked at over 81,000 tonnes. By the early 1980s, the SBT stock had been severely overfished. By 1980, estimates of the parental stock had declined to 25-35% of its 1960 level. In response to this decline, Australia and New Zealand introduced limits on their domestic catches in 1983. Subsequently, in 1985, Australia, Japan and New Zealand introduced a global total allowable catch (‘TAC’) for SBT and national allocations under a voluntary, trilateral agreement. In 1989, a TAC of 11,750 tonnes was agreed, with national allocations of 6,065 tonnes, 5,265 tonnes and 420 tonnes to Japan, Australia and New Zealand respectively. Despite the introduction of catch limits, the parental stock continued to decline and in 1997 was estimated to be at historically low levels in the order of 7-15% of its 1960 level.

3 Corresponding to the drastic decline in the parental stock, recruitment has declined markedly from the late 1960s to the mid-1990s. In 1998, both the Scientific Committee established under the 1993 Convention, and the Stock Assessment Group established by the Commission for the Conservation of Southern Bluefin Tuna (‘the Commission’) agreed that recent recruitment was around one third of the 1960 level.

INSERT GRAPHIC SHOWING DECLINE OF CATCHES and parental stock (AP)

Mean ratio of the estimates of parental biomass in each year relative to the 1960 estimate. [CAPTION]

7. The long and continuous history of intensive fishing of the SBT stock has resulted in a population that is significantly recruitment overfished and is below commonly accepted thresholds for biologically safe parental biomass. Below such thresholds, the risk of poor recruitment will increase. The greatest concern is that natural environmental variability could combine with the vulnerable state of the resource to cause abrupt recruitment decline and a subsequent further decline in the parental stock. The Scientific Committee of the Commission has repeatedly stressed that the continued low abundance of the parental biomass is cause for serious biological concern.

8. There are a number of internationally recognised biological reference points that indicate whether a stock is being overfished. The principle behind all of these reference points is that they indicate a state for the stock and/or fishery which should be avoided. Biological reference points are defined in terms of the level of depletion of a stock or in terms of the rate at which it is currently being exploited. The application of the precautionary principle to fishery management requires that restraint be exercised when these reference points have been exceeded. For SBT, the current stock levels are estimated to be below reference points based on levels of stock depletion and estimates of the rates of exploitation indicate that it is highly likely that precautionary exploitation rate reference points are being exceeded.

4 Establishment of the Commission for the Conservation of Southern Bluefin Tuna

9. Following the entry into force of the 1993 Convention, to which Australia, Japan and New Zealand are parties, arrangements between the three countries for the conservation and management of SBT have been determined by the Commission which was established under Article 6 of that Convention. Article 9 of the 1993 Convention provides for the Scientific Committee to report about the status of the SBT stock to the Commission and to make recommendations to the Commission on the conservation, management and optimum utilisation of SBT. The Commission, of which all three parties are members, decides a TAC, and distributes the TAC by national allocations among the member States. In making its recommendations the Scientific Committee takes into account the impact of non-party catches of SBT.

10. In May 1994, the Commission set a TAC of 11,750 tonnes, with national allocations of 6,065 tonnes, 5,265 tonnes and 420 tonnes to Japan, Australia and New Zealand respectively. Since then, there has been no agreement to change the TAC from that level. In the absence of a decision by the Commission setting a TAC, there has been acceptance by the parties to continue to adhere to previously agreed quota levels, and Australia and New Zealand have in fact done so. Moreover, Australia’s Southern Bluefin Tuna Fishery Management Plan under its Fisheries Management Act 1991 formally requires Australia to set its domestic quota no greater than the previously agreed level in the absence of any agreement.

11. Australia, New Zealand and Japan agree that the SBT stock is currently severely depleted and remains a cause for serious biological concern. The accepted rebuilding objective of the Commission is to restore the parental stock of SBT to its 1980 level by the year 2020. For the past few years, Australia and New Zealand have differed with Japan over the appropriate TAC that can be prescribed while still allowing this objective to be realised. In this respect, Australia and New Zealand believe that continued catch restraint is necessary to allow recovery of the SBT stock. This position is strongly supported by the precautionary principle. Since the most recent parental stock level estimates, according to many indications, are still declining,

5 and given their historically low level, the precautionary principle dictates that all States involved in the harvest of SBT should exercise restraint and refrain from unilateral action which may further deplete the stock.

Experimental fishing

12. For several years, the parties have been discussing the concept of an experimental fishing program (‘EFP’) under the Commission as a means of enhancing the understanding of the SBT stock and of reducing uncertainty as to the state of the stock. In May 1996, the Commission decided on objectives and principles for the design and implementation of an EFP (‘1996 Objectives and Principles’: see Annex 2). These objectives and principles directed, inter alia, that any EFP adopted by the Commission should be the product of collaboration between the parties (paragraph 2), should not jeopardise the potential recovery of the parental SBT stock (paragraph 4), and should be designed to deliver scientifically valid and meaningful results (paragraph 5). Japan has since put forward a series of proposals for experimental fishing. These have not been accepted by Australia or New Zealand or by the Commission because they have not satisfied the 1996 Objectives and Principles.

13. In February 1998, Japan indicated that in the coming year it would fish commercially at the level of national allocation fixed for its most recent fishing year (March 1997 to February 1998) and that it would take, an additional 2,010 tonnes of SBT annually for three years, for the purposes of a unilateral EFP. Between March and June 1998, talks were held between Australia, Japan and New Zealand, but these failed to resolve the differences over the Japanese proposal for an EFP, which had not been agreed by the Commission. On 1 June 1998, Japan made a revised proposal for a pilot EFP of 1,400 tonnes which was to commence on 1 July that year, to precede its three year programme. Australia and New Zealand formally expressed the views that the proposal was unacceptable by reference to the agreed criteria, and requested Japan not to commence the EFP. Despite those requests, Japan conducted a unilateral EFP in the southern Indian Ocean from 10 July 1998 to 31 August 1998, under which Japan

6 took an additional 1,464 tonnes of SBT over and above its previously agreed national allocation.

14. In response to Japan’s initiation of a unilateral program in 1998, Australia and New Zealand formally requested urgent consultations and negotiations under Article 16(1) of the 1993 Convention. Despite intensive efforts within this framework to reach agreement on a joint programme of experimental fishing for 1999, agreement was not reached between the Parties, and Japan unilaterally initiated the second year of its experimental fishing in June 1999. That unilateral experimental fishing is continuing as at the time of the notification of this Statement of Claim.

15. Unilateral Japanese action occurs against the background of significant increases in catches by non-parties to the 1993 Convention in the last several years. All parties to the 1993 Convention have recognised the increased threat of these non- party catches to the SBT stock. In the face of increased catches by non-parties, Japan’s unilateral experimental fishing further compounds the risk and threats to the stock, and encourages third States to act in a similar non-precautionary way.

16. Japan’s 1998 unilateral experimental fishing constituted a 12.5% increase in the catches of SBT above the last agreed TAC. Japan has indicated that its 1999 unilateral experimental fishing may well involve taking catch up to 2,400 tonnes of SBT, representing an increase of 20.5% above the last agreed TAC. In this context, it should be noted that Japan did not set a catch limit on its unilateral experimental fishing in 1999 and this figure of 2,400 tonnes is the upper end of the range given by Japan for its likely catch under the 1999 phase of its unilateral experimental fishing.

17. There are several reasons why Australia was unable to accept Japan’s 1998 and 1999 unilateral experimental fishing proposals involving an increase above the last agreed TAC. Australia considers that neither the 1998 nor 1999 proposals satisfied the agreed 1996 Objectives and Principles. Australia considers that Japan’s unilateral experimental fishing is misdirected relative to the true impacts of uncertainty within

7 the current SBT stock assessment, and that the experimental design and analysis are fundamentally flawed. Japan has constantly stated that its unilateral experimental fishing is designed to resolve one of the key uncertainties in the current stock assessment, viz. interpretation of catch per unit of effort (CPUE). However, the experiment targets only one aspect of the uncertainty in the interpretation of the CPUE data and even if this component of the uncertainty were resolved it would not resolve the differences among the parties about stock recovery and appropriate TAC levels. Thus, the objectives and design of the experiment do not justify the significant increased risk to the stock especially when other mechanisms for reducing uncertainty were available that would require little or no additional catch. Japan has also not provided adequate mechanisms to ensure the scientific validity of the data provided by its vessels carrying out the experimental fishing.

THE DISPUTE

18. Australia formally notified Japan that a dispute existed between the two countries over Japan’s conduct of unilateral experimental fishing in 1998 and its legality under international law. It did so by diplomatic Note No. LGB 98/318 delivered on 31 August 1998 (see Annex 3). The Note set out Australia’s view that Japan, in conducting unilateral experimental fishing, had placed itself in breach of its obligations under international law, in particular its obligations under:

(a) the 1993 Convention;

(b) UNCLOS; and

(c) customary international law, including the precautionary principle.

The Note requested that urgent consultations, followed by negotiations, be convened under Article 16(1) of the 1993 Convention in order to resolve the dispute.

19. New Zealand likewise formally notified Japan by diplomatic Note dated 31 August 1998 that a dispute existed between the two countries over the legality under international law of the latter’s conduct of unilateral experimental fishing.

8 20. Following further correspondence by diplomatic Notes between Australia and New Zealand on the one hand, and Japan on the other hand, agreement was finally reached to hold the consultations sought by Australia and New Zealand in their respective Notes of 31 August 1998. These consultations took place in Canberra, Australia on 9 November 1998 and involved the three parties. At the consultations, the parties agreed to hold negotiations under Article 16(1) of the 1993 Convention in an attempt to resolve the dispute relating to Japan’s unilateral experimental fishing.

21. These negotiations were held in Tokyo, Japan from 20 to 23 December 1998. However, it was not possible to resolve the dispute which arose over Japan’s conduct in unilaterally carrying out experimental fishing, and threatening to carry out future unilateral experimental fishing, against the wishes of the other parties. Nevertheless, in order to move matters forward, and without prejudice to their respective legal positions in relation to the dispute, the three countries agreed to establish a working group to develop a possible future joint programme of experimental fishing (‘the EFPWG’), one which would conform with the 1996 Objectives and Principles.

22. From February to May 1999, the EFPWG formally met four times, without reaching agreement on a future joint programme. Subsequently, the parties participated in a series of meetings during April and May 1999, culminating in a bilateral meeting of Australian and Japanese officials in Canberra, Australia on 26-27 May 1999. At that meeting, Australia was advised that unless it accepted Japan’s proposal for a 1999 joint experimental fishing programme, Japan would recommence unilateral experimental fishing on 1 June 1999 on its own terms. On 28 May 1999 Japan conveyed the same advice to New Zealand. Australia and New Zealand each informed Japan that its proposal was not acceptable.

23. By diplomatic Note No. LGB 99/158 delivered on 31 May 1999 Australia formally requested Japan not to recommence unilateral experimental fishing on 1 June 1999 or at any time thereafter. The Note stated Australia’s view that the recommencement of unilateral experimental fishing by Japan would be contrary to

9 Japan’s obligations under international law and would expand the scope of the ongoing dispute between the two countries. The Note informed Japan that, if it recommenced unilateral experimental fishing on 1 June 1999 or at any time thereafter, Australia would regard such action as a unilateral termination by Japan of the negotiations under Article 16(1) of the 1993 Convention.

24. By diplomatic Note No. 99-040 of 1 June 1999 Japan advised Australia that it had decided to commence unilateral experimental fishing on 1 June 1999. In that Note, Japan sought the continuation of discussions and expressed its willingness to adjust its experimental fishing catch later when consensus was reached.

25. Australia replied to Japan’s Note of 1 June 1999 by diplomatic Note No. LGB 99/198 of 7 June 1999. This Note restated Australia’s position on Japan’s recommencement of unilateral experimental fishing and, recalling Australia’s Note of 31 May 1999, informed Japan that its action had terminated unilaterally the negotiations under Article 16(1) of the 1993 Convention. The Note also advised Japan that Australia was examining other options open to it under international law for resolving the dispute.

26. New Zealand likewise formally notified Japan by diplomatic Note dated 8 June 1999 that Japan’s action in recommencing unilateral experimental fishing had terminated unilaterally the negotiations under Article 16(1) of the 1993 Convention.

27. Japan replied to Australia’s Note of 7 June 1999 by diplomatic Note No. 99-045 of 15 June 1999, in which it stated that Japan had no intention of terminating the negotiations under Article 16(1) of the 1993 Convention. The Note reiterated Japan’s position about the continuation of discussions and expressed its willingness to continue consultations to have the dispute resolved in accordance with Article 16(1) of the 1993 Convention. The Note again expressed Japan’s willingness to adjust its unilateral experimental fishing when consensus was reached.

28. In its diplomatic Note No. LGB 99/223 of 23 June 1999, Australia restated the view expressed in its Note of 31 August 1998 and in subsequent

10 exchanges, written and oral, between the two countries that the dispute did not relate solely to Japan’s obligations under the 1993 Convention, but also involved its obligations under UNCLOS and customary international law. In these circumstances, Australia considered there had been a full exchange of views on the dispute for the purposes of Article 283(1) of UNCLOS. The Note went on to inform Japan that, given the legal issues involved and Japan’s precipitate action in recommencing unilateral experimental fishing, Australia required a form of dispute settlement which resolved all of the legal issues quickly and definitively. Consistent with Article 283(2) of UNCLOS, Australia stated its view that the most appropriate means of resolving the dispute would be for it to commence compulsory dispute settlement procedures entailing binding decisions under UNCLOS.

29. New Zealand likewise formally advised Japan by diplomatic Note dated 24 June 1999 that it required a form of dispute settlement which resolved all of the legal issues definitively and that the most appropriate course of action for it to take would be to commence compulsory dispute settlement procedures entailing binding decisions under UNCLOS.

30. By diplomatic Note No. 99-049 of 23 June 1999, Japan recalled Australia’s Note of 7 June 1999, which advised Japan that Australia was examining other options open to it under international law for resolving the dispute. Japan’s Note stated that it was ready to have the dispute resolved by mediation under the provisions of the 1993 Convention.

31. Australia responded to Japan’s Note by diplomatic Note No. LGB 99/227 of 30 June 1999. In this Note, Australia informed Japan that, without prejudice to its above-stated legal position, it was ready as a matter of urgency to resume attempts to resolve the dispute by amicable processes which stopped short of the compulsory dispute settlement procedures entailing binding decisions under UNCLOS. Accordingly, Australia stated that it was willing to submit the dispute urgently to mediation as suggested by Japan, provided that:

11 (a) Japan agreed to cease its unilateral experimental fishing; and

(b) the mediation was conducted on a reasonably expeditious timetable.

The Note expressed Australia’s view that Japan would need to cease its unilateral fishing by 5 July 1999 and that the mediation would need to be completed by 31 August 1999.

32. Japan responded to Australia’s Notes of 23 June 1999 and 30 June 1999 by diplomatic Note No. 99-056 of 2 July 1999. In this Note Japan maintained its proposal for mediation. The Note did not convey Japan’s agreement to cease its unilateral experimental fishing, which had been sought in Australia’s Note of 30 June 1999. The Note expressed Japan’s view that the question of its unilateral experimental fishing could be discussed in the framework of mediation and negotiations under the 1993 Convention.

33. In diplomatic Note No. 99-058 of 9 July 1999 Japan provided a supplementary explanation of its proposal regarding mediation, which had first been made in its Note of 23 June 1999. While sharing Australia’s view that mediation would need to be conducted on a reasonably expeditious timetable, Japan expressed the view that it was not appropriate to set a deadline without discussing the mediator or the terms of reference. Referring to Australia’s willingness to accept recourse to mediation if Japan agreed to cease its unilateral experimental fishing, Japan reiterated the view expressed in its Note of 2 July 1999 that the question of its experimental fishing could be discussed in the framework of mediation and negotiations under the 1993 Convention.

34. In its diplomatic Note No. 99-059 of 14 July 1999 Japan reiterated its position that its experimental fishing was consistent with Japan’s obligations under the 1993 Convention and stated it could not accept the condition placed by Australia on submitting the dispute to mediation that Japan agree to cease its unilateral experimental fishing. The Note further advised that Japan was ready to have the dispute resolved by arbitration pursuant to Article 16(2) of the 1993 Convention, but

12 again made it clear that it was not prepared to cease its unilateral actions in conducting experimental fishing and taking additional catch above previously agreed catch limits. The Note also proposed that a mechanism be established simultaneously with arbitration which would allow consultations on a joint experimental fishing programme to be resumed.

35. Australia responded to Japan’s Notes of 2, 9 and 14 July by diplomatic of 15 July 1999. In this Note Australia informed Japan of its view that Japan’s Notes of 2, 9 and 14 July 1999 amounted to a rejection of Australia’s conditional acceptance of mediation and stated that Australia could not accept mediation on the basis proposed by Japan. The Note informed Japan that Australia had decided to commence compulsory dispute resolution proceedings under Part XV of UNCLOS and that it followed that Australia did not accept the proposal of Japan for arbitration pursuant to Article 16(2) of the 1993 Convention. Pending the constitution of the arbitral tribunal to which Australia was submitting the dispute under Annex VII to UNCLOS, the Note requested provisional measures under Article 290(5) of UNCLOS, including the immediate cessation of unilateral experimental fishing by Japan.

JURISDICTION

36. Australia, Japan and New Zealand are Parties to UNCLOS. Part XV of UNCLOS establishes a regime for the settlement of disputes concerning the interpretation or application of UNCLOS.

37. As noted above, Australia formally notified Japan that a dispute existed between the two countries over Japan’s conduct of unilateral experimental fishing in 1998 and its legality under international law by diplomatic Note No. LGB 98/318 of 31 August 1998. Relevant provisions of UNCLOS have been consistently raised in subsequent diplomatic correspondence with Japan. Australia’s position is that Japan, in conducting unilateral experimental fishing, has failed to take required measures for the conservation and management of the living resources of the high seas, specifically SBT, and has thereby placed itself in breach of its obligations under international law,

13 specifically articles 64 and 116-119 of UNCLOS, and in relation thereto Article 300 and the precautionary principle which, under international law, must direct any party in the application of those articles. Accordingly, Australia submits that its dispute with Japan is one which concerns the interpretation or application of UNCLOS.

38. Article 283(1) requires States Parties which are parties to a dispute concerning the interpretation or application of UNCLOS to exchange views regarding its settlement. As stated in Australia’s Note of 23 June 1999 and as described above, there has been a full exchange of views on the dispute for the purposes of Article 283(1). That exchange of views has led to no resolution of the dispute. Australia accepted Japan’s offer of mediation in relation to the dispute, on condition that Japan cease its unilateral action in the meantime. With Japan’s failure to agree to that condition, the position is that no further resolution can be looked for through negotiation or mediation. Nor does Japan’s last minute offer to arbitrate the dispute under the 1993 Convention affect matters. That offer was not accompanied by any offer to suspend unilateral experimental fishing, or to cease taking unilateral action in relation to the fishery. In a situation in which arrangements for the continued conservation and management of the SBT stock have been frustrated by Japan’s refusal to agree a TAC, and its other actions as spelled out below, Australia is entitled to resort to Part XV of UNCLOS, which alone provides for effective dispute settlement in relation to the foundational principles of the conservation and management of the living resources of the high seas, and in particular highly migratory species.

39. Japan, by its actions in recommencing unilateral experimental fishing in June 1999, terminated the negotiations under Article 16(1) of the 1993 Convention. Article 283(2) of UNCLOS requires parties to a dispute to proceed expeditiously to an exchange of views, inter alia, where a procedure for the settlement of the dispute has been terminated. The series of Notes exchanged between Australia and Japan, commencing with Australia’s Note No. LGB 99/223 of 23 June 1998, confirm that there has been an exchange of views for the purposes of Article 283(2) of UNCLOS.

14 40. In its Note of 23 June 1999, Australia provided its view that the most appropriate means of resolving the dispute would be for it to commence compulsory dispute settlement procedures entailing binding decisions under UNCLOS. Japan has rejected that view and has not accepted reasonable conditions placed by Australia on mediation as a means of settlement not involving a binding decision. Having done so, it proposed that the dispute be submitted to arbitration pursuant to Article 16(2) of the 1993 Convention, but again without accepting those conditions or proposing any reasonable alternatives thereto.

41. In responding to Japan’s proposal regarding arbitration, Australia, in its Note of 15 July 1999, stressed the centrality of Japan’s obligations under UNCLOS and under customary international law to the current dispute and the need for them to be addressed if the dispute is to be resolved. Australia also reiterated its view that the conduct of Japan under the 1993 Convention was relevant to the issue of its compliance with UNCLOS and may be taken into account in dispute settlement under Part XV of UNCLOS. Accordingly, Australia informed Japan that it had decided to commence compulsory dispute resolution proceedings under Part XV.

42. Part XV of UNCLOS provides a mechanism by which a party may invoke compulsory procedures for the resolution of the dispute. Article 281(1) allows either Australia or Japan to have recourse to procedures provided for in Part XV, including compulsory procedures entailing binding decisions under section 2 of that Part. Article 286 permits these compulsory procedures to be invoked by any party to the dispute submitting the dispute to a court or tribunal having jurisdiction under section 2.

43. Article 287 governs the choice of compulsory procedures. Article 287(1) permits a State Party, by way of a written declaration, to choose one or more of the means for the settlement of disputes listed in the paragraph, which include an arbitral tribunal established under Annex VII. As neither Australia nor Japan has made a written declaration pursuant to Article 287(1), both countries are deemed by operation of Article 287(3) to have accepted arbitration in accordance with Annex VII

15 as the means of settling disputes between them concerning the interpretation or application of UNCLOS.

44. Accordingly, Australia, as permitted by Article 286, has requested the submission of the dispute between itself and Japan to an arbitral tribunal constituted in accordance with Annex VII, which has jurisdiction over that dispute in accordance with Article 288(1).

GROUNDS ON WHICH AUSTRALIA’S CLAIM IS BASED

45. Australia submits that Japan, by conducting unilateral experimental fishing and by its other conduct in relation to the stock has failed to take the required measures for the conservation and management of the living resources of the high seas, specifically SBT, and has thereby placed itself in breach of its obligations under international law, specifically articles 64 and 116-119 of UNCLOS, and in relation thereto Article 300 of UNCLOS and the precautionary principle which, under international law, must direct any party in the application and implementation of those articles.

46. Japan’s conduct, which is the subject of the present application, includes the following.

47. Japan has made repeated attempts to secure increases in the TAC without regard to the sustainability of the stock or the application of the precautionary principle. Examples of this include:

(a) At the Second Annual Meeting of the Commission in September 1995, the Commission recognised that there was a high level of uncertainty in the stock assessment. Nevertheless, Japan sought an increase in the TAC of 6,000 tonnes. As a consequence of Japan’s insistence on such an increase, the Commission could not decide upon the TAC.

(b) Japan again sought an increase in the TAC of 6,000 tonnes at the Special Meeting of the Commission in October 1995. An alternative proposal for

16 an annual experimental fishing quota of 6,000 tonnes over three years was also submitted by Japan at that meeting. These requests were repeated at the reconvened Special Meeting of the Commission in January 1996. In response to these repeated requests, Australia and New Zealand proposed that the TAC remain unchanged, stating that an increase could not be justified given the severely depleted state of the stock. Again, Japan’s insistence on a quota increase prevented the Commission from deciding upon the TAC at these meetings. A decision that the TAC would remain at 11,750 tonnes for the 1995/96 fishing season was agreed only at the very last moment at the Second Special Meeting of the Commission in May 1996.

(c) At the Third Annual Meeting of the Commission in September 1996, Japan requested an increase in the TAC of 3,000 tonnes. This increase was sought despite the Scientific Committee’s conclusion that the parental biomass in 1995 was 25-39% of that in 1980, and only 5-8% of that in 1960. Australia and New Zealand consistently maintained that an increase in the TAC was not acceptable given the current stock status, and proposed the TAC remain unchanged. A decision that the 1996/1997 TAC would remain at the level agreed for 1995/96 was not made until February 1997.

(d) Japan continued to request an increase in the TAC of 3,000 tonnes during the Fourth Annual Meeting of the Commission in September 1997, and at resumed sessions of that Meeting in January and February 1998. New Zealand expressed its concern over the depleted state of the stock and proposed the TAC be reduced by 3,000 tonnes. In the absence of a decision on the TAC, Australia and New Zealand gave a voluntary commitment to adhere to their previously agreed national allocations and called on Japan to do the same. Japan undertook to restrain its commercial catch to its previous national allocation of 1996/97. However, Japan also indicated that, in addition to that catch, it would commence a programmme

17 of unilateral experimental fishing during 1998 taking 2,010 tonnes annually over three years.

(e) At the Fifth Annual Meeting of the Commission in February 1999, Japan sought, at minimum, a 3,000 tonne increase in the TAC. Japan further relied upon the results of its 1998 unilateral experimental fishing to support its contention that there was a high probability of stock recovery. New Zealand indicated its ongoing concern over the status of the stock and urged that steps be taken to restrain and potentially reduce overall catch. Australia proposed that the TAC in 1998/99 remain at 11,750 tonnes. A decision on the TAC could not be reached at that meeting; nor has a decision been reached subsequently.

48. Japan has also made repeated attempts to persuade Australia and New Zealand to agree to an “experimental fishing program” which contained serious flaws and would result in a significant proportion of the catch being taken in commercial fishing operations by the Japanese fleet. Examples of this include:

(a) At the Special Meeting of the Commission in October 1995, Japan proposed an experimental fishing program involving a catch above TAC of 6,000 tonnes annually for three years. While acknowledging that an EFP might assist in resolving some sources of uncertainty, Australia and New Zealand considered that any EFP should be closely monitored and carried out only under a clearly defined experimental design, developed and agreed amongst all members of the Commission. Japan also indicated expressly that the figure of 6,000 tonnes for its proposed special experimental quota could be reduced if the TAC were increased by the same amount.

(b) Japan made a revised proposal, still positing an additional 6,000 tonnes of catch per year for three years, on 25 December 1995, and by a further revision on 19 January 1996 reduced the proposed annual additional catch to 4,000 tonnes.

18 (c) At the Third Meeting of the Commission in September 1996, Japan presented a Joint Pilot Program for an EFP. Subsequent discussion in the Commission proceeded on the basis that it involved catch of 3,000 tonnes annually for three years, the same level of increase as Japan was then seeking in the TAC. In presenting a revised version of its Joint Pilot Program for an EFP when that meeting resumed in February 1997, Japan asserted that, as a pilot program, it was not subject to the procedures decided by the Commission in its 1996 Objectives and Principles, which it claimed applied only to EFPs proper.

(d) At the third session of the Fourth Annual Meeting of the Commission in February 1998, Japan stated that it would conduct unilateral experimental fishing taking 2,010 tonnes annually for three years. In objecting thereto and to the latest revision of the proposal on which it was based, Australia and New Zealand stated that other mechanisms for reducing uncertainty were available that would require no additional catch. Australia noted that, although the ostensible aim of the program was to determine the density of SBT in areas formerly but no longer fished, the proposed vessel deployment scheme would result in a substantial majority of the effort and catch being taken from time and area strata still being fished, on an essentially commercial basis. This and other features of the Japanese proposals, unacceptable to Australia and New Zealand, continued through all subsequent refinements of the proposal in contacts between the parties, including the unilateral experimental fishing ultimately undertaken by Japan in 1998 and 1999.

49. Japan undertook unilateral experimental fishing during the months of July and August 1998. This resulted in 1,464 tonnes of additional catch of SBT being taken by Japan over and above previously agreed levels of catch, essentially for Japanese commercial purposes, with minimal scientific gain.

19 50. Japan recommenced unilateral experimental fishing on 1 June 1999, similarly involving a catch of SBT again above previously agreed levels of catch, essentially for Japanese commercial purposes, with minimal scientific gain, thereby increasing the risk to the SBT stock.

Obligations under UNCLOS

51. In general, UNCLOS balances the rights of States Parties, on the one hand, with obligations to create a global legal regime governing all ocean space and the use of living and non-living resources found in the oceans, on the other hand. The aim, overall, is that of conserving and preserving the living resources of the high seas for future generations. In relation to marine living resources, UNCLOS establishes a regulatory framework which balances the conservation and use of such resources and the rights and obligations both of coastal States and distant water fishing States. The obligations which Japan has breached are imposed within this framework. They are obligations which Japan is required by Article 300 of UNCLOS to fulfil in good faith. It should be stressed in this context that the historic freedom of fisheries, as an aspect of the freedom of the seas, is now qualified by obligations of at least equal importance, including especially those in UNCLOS itself: see Article 116 paragraphs (a), (b) and (c), each of which paragraphs is directly relevant to the present dispute.

52. In particular, UNCLOS recognises the fundamental importance of cooperation between coastal States and distant water fishing States by laying down in various articles an obligation on these States to cooperate for a range of purposes. It is Australia’s position that, through conduct of the type identified by way of example in paragraphs 47-50 above, Japan is in breach of the obligation to conserve, and to cooperate in the conservation of, a depleted highly migratory species, an obligation clearly specified in the following provisions of UNCLOS.

Article 64: cooperation with the appropriate international organisation in the conservation of a highly migratory species

20 53. Article 64 addresses cooperation in relation to highly migratory fish species such as SBT. Article 64(1) places an obligation on the coastal State and other States whose nationals fish in the region for highly migratory species to cooperate directly or through appropriate international organisations with a view to ensuring conservation and promoting optimum utilisation of such species both within and beyond the exclusive economic zone. It also recognises the special interests of the coastal State in such species.

54. In the circumstances, Article 64, read in conjunction with other relevant provisions of UNCLOS, imposes an obligation on Japan, as a distant water fishing State whose nationals fish for SBT, to cooperate with Australia and New Zealand, as coastal States, in achieving the conservation of this highly migratory species. The Commission established under the 1993 Convention is the principal means chosen by the parties to achieve this result, and it is thus the “appropriate international organisation” for the purposes of Article 64. The 1993 Convention has the primary purpose of ensuring, through appropriate management, the conservation and optimum utilisation of SBT. But Japan’s unilateral actions in undertaking experimental fishing, and in otherwise failing to cooperate in the conservation of the SBT stock, defeat the object and purpose of the 1993 Convention. In such a case, the underlying obligation in UNCLOS remains, and provides an essential basis for the responsibility of Japan. A State party to a regional treaty which deliberately prevents the object and purpose of that treaty from being achieved through repeated unilateral action and the threat of unilateral action, can be called to account for this failure through the mechanisms that UNCLOS provides. While the 1993 Convention was intended as a means of implementing the obligations imposed by UNCLOS in respect of highly migratory fish species, it is not a means of escaping those obligations. By its conduct defeating the object and purpose of the 1993 Convention of the type identified by way of example in paragraphs 47-50 above, Japan is simultaneously in breach of its obligations under UNCLOS, and in particular Article 64.

21 Article 117: ensuring that nationals act consistently with the conservation of marine living resources, specifically the seriously depleted SBT stock

55. Article 117 deals with the conservation of the marine living resources of the high seas, which include SBT. It imposes an obligation on States to take, and to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas. In the context of the long-standing relationship between Australia, Japan and New Zealand relating to the management of SBT, Article 117 places an obligation on Japan to cooperate with Australia and New Zealand in taking measures for its nationals which are necessary for the conservation of SBT. By conduct of the type identified by way of example in paragraphs 47-50 above, Japan has failed to comply with this obligation.

Article 118: cooperation in the conservation of SBT through the relevant international fisheries conservation organisation

56. Article 118 places an obligation on States to cooperate in the conservation and management of the living resources in the areas of the high seas, which include SBT, inter alia, through the establishment of fisheries organisations, such as the Commission. In the circumstances of the present case, where such an organisation has been established and is taking concerted measures addressed at the conservation of a seriously depleted stock, Article 118 imposes an obligation on Japan to cooperate with the organisation and its members in the conservation and management of SBT. Japan’s conduct of the type identified by way of example in paragraphs 47-50 above is contrary to its obligation under Article 118.

Article 119: obligation to conserve the living resources of the high seas

57. Article 119 places an obligation on States Parties to ensure that, in determining the allowable catch and establishing other conservation measures for the living resources in the high seas, they take measures designed, on the best scientific evidence available, to maintain or restore populations of harvested species at levels

22 which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors.

58. It follows from Article 119 that States may not engage in additional fishing of a seriously depleted stock, and in particular may not do so unilaterally, in circumstances where available scientific evidence suggests that doing so will threaten the recovery of the stock to levels which would permit sustainable harvests approaching maximum sustainable yield. In the circumstances, Australia and New Zealand have a right vis-à-vis Japan that it not take measures which are capable of having a significant adverse effect on the SBT stock, and which produce no countervailing benefit in terms of conservation. By relying on its own scientific evidence and ignoring credible scientific evidence presented by Australia and New Zealand, Japan cannot be said to be taking measures which are based upon “best scientific evidence available”. By its participation in the 1993 Convention, Japan has obtained the benefits of the restraint of Australia and New Zealand in relation to a seriously depleted fishery. At the same time it has pursued a course of unilateral action in its exclusive interest, evidenced by the type of conduct identified in paragraphs 47-50 above, which is in breach of Article 119(1), and (since it is of exclusive benefit to Japan and its nationals) is discriminatory under Article 119(3).

Article 116: the nature of high seas fishing rights

59. Article 87(1)(e) makes it clear that a State’s right to undertake fishing on the high seas is not unlimited. Limitations are placed on this right by Article 116. Accordingly, a State Party is under a duty to observe the limitations established by Article 116 in the conduct of its fishing on the high seas. In particular, Article 116 makes a State Party’s right to fish on the high seas subject to:

(a) its treaty obligations;

(b) the rights and duties as well as the interests of coastal States provided for, inter alia, in Article 64; and

23 (c) the provisions of section 2 of Part VII, which deal with the conservation and management of the living resources of the high seas.

60. The term ‘treaty obligations’ in Article 116(a) is not subject to any express limitation. As a matter of interpretation, it must be taken to include any treaty obligation of a State Party which may bear on its right to fish on the high seas. In this regard, the 1993 Convention places obligations on Japan which affect its right to fish on the high seas for SBT, including the conduct of experimental fishing. Japan’s conduct of the type identified by way of example in paragraphs 47-50 above is calculated to defeat the object and purpose of the 1993 Convention, and is accordingly not authorised or permitted by Article 116.

61. Article 116(b) makes a State Party’s right to fish on the high seas subject to the rights and duties, as well as the interests, of coastal States provided for in Article 64. It follows by necessary implication that conduct which fails to respect those rights and interests is in breach of Article 116. As submitted in paragraphs 53 and 54, Article 64(1) places an obligation on coastal States and other States whose nationals fish in the region for highly migratory fish species to cooperate with a view to ensuring conservation and promoting optimum utilisation of species such as SBT. In requiring cooperation between coastal States and other States, Article 64 extends an important protection to concerned coastal States. By its conduct of the type identified by way of example in paragraphs 47-50 above, Japan is also in breach of Article 116 for not conducting its fishing on the high seas with regard to the rights and duties, as well as the interests, of Australia and New Zealand as coastal States, recognised in Article 64.

62. Finally, Article 116(c) also makes a State Party’s right to fish on the high seas subject to the provisions of section 2 of Part VII, i.e. Articles 116 to 120. For the reasons given above, Japan’s conduct of the type identified by way of example in paragraphs 47-50 above is in breach of its obligations under Articles 117, 118 and 119, and is accordingly not authorised or permitted by Article 116.

Customary international law: the precautionary principle

24 63. States Parties are required to observe and apply the precautionary principle in meeting their obligations under Article 119 of UNCLOS in relation to the taking of conservation measures. In relation to the marine environment the principle is unquestionably a norm of customary international law which constitutes a fundamental precept of international oceans law. The precautionary principle has recently been incorporated in Article 6 (Application of the precautionary approach) of the 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 (‘UN Fish Stocks Agreement’), which provides in paragraph 1, inter alia, that “States shall apply the precautionary approach widely to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks”. This provision achieved broad acceptance at the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, which adopted the UN Fish Stocks Agreement. Australia, Japan and New Zealand are signatories to the UN Fish Stocks Agreement.

64. Australia, Japan and New Zealand joined in the international consensus adopting Agenda 21 at the 1992 United Nations Conference on Environment and Development. Chapter 17 of Agenda 21 addresses rational use and development of the living resources of the oceans and seas. Its very opening paragraph endorsed “precautionary and anticipatory approaches” as being required by international law reflected in UNCLOS (Agenda 21, Chapter 17, para. 17.1).

65. The precautionary principle must be applied by States in taking decisions about actions which entail threats of serious or irreversible damage to the environment, where there is scientific uncertainty about the effect of such actions. The principle requires caution and vigilance in decision-making in the face of such uncertainty.

66. The conduct of unilateral experimental fishing by Japan threatens serious or irreversible damage to the SBT population, and is incompatible with Japan’s obligations under UNCLOS. In light of this threat and uncertainty, it is Australia’s position that the decision by Japan to carry out experimental fishing has been taken

25 contrary to the precautionary principle. There is serious scientific uncertainty about the effect of the additional catch on the SBT stock, and generally about the state of the stock. On many population projections, the parental stock of SBT will not recover to 1980 levels by 2020 (the accepted rebuilding objective of the parties under the 1993 Convention), or at all, under 1997 catch levels. Since 1997, catches of SBT outside the disciplines imposed by the 1993 Convention has increased. Yet by its conduct of the type identified by way of example in paragraphs 47-50 above Japan is undermining those disciplines, contributing to overfishing, and placing the stock at further risk.

Obligation not to defeat the object and purpose of the UN Fish Stocks Agreement

67. Although the UN Fish Stocks Agreement is yet to enter into force, Article 18 of the Vienna Convention on the Law of Treaties (‘the Vienna Convention’), to which Australia and Japan are parties, imposes an obligation on a State which has signed a treaty to refrain from acts which would defeat the object and purpose of that treaty until it has made its intentions clear not to become a party to the treaty. This obligation extends to the case of a treaty which has not entered into force.

68. The object and purpose of the UN Fish Stocks Agreement, as set out in Article 2, is to ‘ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks’, including SBT. The conduct of experimental fishing by Japan, as a signatory to the UN Fish Stocks Agreement, is an act which defeats the stated object and purpose of the Agreement, in so far as it represents a significant risk to the SBT stock and does not promote the long-term conservation and sustainable use of that stock. In the circumstances in which Japan is, for the reasons stated, in breach of articles 64 and 116-119 of UNCLOS, it is not necessary to found a further cause of action on Article 18 of the Vienna Convention. However, the UN Fish Stocks Agreement is significant as an articulation of the standard that should be applied by parties to UNCLOS, and even though it is not yet in force, it cannot be disregarded in the application of UNCLOS.

26 RELIEF SOUGHT

69. For these reasons, Australia requests the arbitral tribunal to order and declare:

(1) That Japan has breached its obligations under Articles 64 and 116 to 119 of UNCLOS in relation to the conservation and management of the SBT stock, including by:

(a) failing to adopt necessary conservation measures for its nationals fishing on the high seas so as to maintain or restore the SBT stock to levels which can produce the maximum sustainable yield, as required by Article 119 of UNCLOS and contrary to the obligation in Article 117 to take necessary conservation measures for its nationals;

(b) carrying out unilateral experimental fishing in 1998 and 1999 which has or will result in SBT being taken by Japan over and above previously agreed Commission national allocations;

(c) taking unilateral action contrary to the rights and interests of Australia as a coastal state as recognised in Article 116(b) and allowing its nationals to catch additional SBT in the course of experimental fishing in a way which discriminates against Australian fishermen contrary to Article 119(3);

(d) failing in good faith to co-operate with Australia with a view to ensuring the conservation of SBT, as required by Article 64 of UNCLOS; and

(e) otherwise failing in its obligations under UNCLOS in respect of the conservation and management of SBT, having regard to the requirements of the precautionary principle.

27 (2) That, as a consequence of the aforesaid breaches of UNCLOS, Japan shall:

(a) refrain from authorising or conducting any further experimental fishing for SBT without the agreement of Australia and New Zealand;

(b) negotiate and co-operate in good faith with Australia, including through the Commission, with a view to agreeing future conservation measures and TAC for SBT necessary for maintaining and restoring the SBT stock to levels which can produce the maximum sustainable yield;

(c) ensure that its nationals and persons subject to its jurisdiction do not take any SBT which would lead to a total annual catch of SBT by Japan above the amount of the previous national allocation for Japan agreed with Australia and New Zealand until such time as agreement is reached with those States on an alternative level of catch; and

(d) restrict its catch in any given fishing year to its national allocation as last agreed in the Commission, subject to the reduction of such catch for the current year by the amount of SBT taken by Japan in the course of its unilateral experimental fishing in 1998 and 1999.

(3) That Japan pay Australia’s costs of the proceedings.

PROVISIONAL MEASURES

70. Australia reserves the right to seek provisional measures in accordance with Article 290 of UNCLOS.

15 July 1999

28 INDEX OF ANNEXES TO THE APPLICATION

Annex 1: Convention for the Conservation of Southern Bluefin Tuna

Annex 2: 1996 Objectives and Principles for the design and implementation of an experimental fishing programme. (CCSBT, Second Special Meeting, Canberra, 3 May 1996.)

Annex 3: Australia’s diplomatic Note No. LGB 98/318 of 31 August 1998

29