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VR INTERNATIONAL CENTRE FOR
SETTLEMENT OF INVESTMENT DISPUTES
------x : In the Matter of: : : SOUTHERN BLUEFIN TUNA CASE : : AUSTRALIA AND NEW ZEALAND v. JAPAN : : ------x
Volume I
Sunday, May 7, 2000
Conference Room 13-121 The World Bank 1818 H Street, N.W. Washington, D.C.
The hearing in the above-entitled matter
was convened at 10:00 a.m. before:
H.E. JUDGE STEPHEN M. SCHWEBEL, President
H.E. JUDGE FLORENTINO FELICIANO, Arbitrator
THE RT. HON. JUSTICE SIR KENNETH KEITH, KBE, Arbitrator
H.E. JUDGE PER TRESSELT, Arbitrator
PROFESSOR CHUSEI YAMADA, Arbitrator
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APPEARANCES:
On behalf of the Governments of Australia and New Zealand:
BILL CAMPBELL, Agent for the Government of Australia and Counsel
TIM CAUGHLEY, Agent for the Government of New Zealand and Counsel
JAMES CRAWFORD SC, Whewell Professor of International Law, University of Cambridge, Counsel for Australia
BILL MANSFIELD, Counsel for New Zealand
HENRY BURMESTER QC, Counsel for Australia
MARK JENNINGS, Counsel for Australia
ELANA GEDDIS, Counsel for New Zealand
REBECAA IRWIN, Counsel for Australia
ANDREW SERDY, Counsel for Australia
and
JOSHUA A. BRIEN
As Advocate.
On behalf of the Government of Japan:
SHOTARO YACHI, Director General of the Treaties Bureau, Ministry of Foreign Affairs, Agent for the Government of Japan
NISUKE ANDO, Professor of International Law, Doshisha University, President of the Japanese Association of International Law, Professor Emeritus, Kyoto University
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SIR ELIHU LAUTERPACHT, CBE, QC
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SHABTAI ROSENNE, Member of the Israel Bar, Member of the Institute of International Law
VAUGHAN LOWE, Chichele Professor of Public International Law, All Souls College, University of Oxford
As Counsel,
And
NOBUKATSU KANEHARA, Director of the Legal Affairs Division, Ministry of Foreign Affairs
TAKESHI AKAHORI, Deputy Director, Legal Affairs Division, Ministry of Foreign Affairs
RUI MATSUKAWA, Official, Legal Affairs Division, Ministry of Foreign Affairs
RUMI ARIYOSHI, Official, Legal Affairs Division, Ministry of Foreign Affairs
YOSHIAKI ITO, Director, Fishery Division, Ministry of Foreign Affairs
KEIKO ISHIHARA, Assistant Director, Fishery Division, Ministry of Foreign Affairs
KOICHI MIYOSHI, Assistant Director, Ocean Division, Ministry of Foreign Affairs
SHIRO YUGE, Counsellor, Fisheries Policy Planning Department, Ministry of Agriculture, Forestry and Fisheries
YOSHIO YAMANE, Director of the International Affairs Division, Ministry of Agriculture, Forestry and Fisheries
MASAYUKI KOMATSU, Counsellor, Fisheries
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Policy Planning Department, Ministry of Agriculture, Forestry and Fisheries
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HISASHI ENDO, Deputy Director of the International Affairs Division, Resources Management Department, Ministry of Agriculture, Forestry and Fisheries
KAZUHIKO UTSUMI, Deputy Director of the Far Seas Fisheries Division, Resources Management Department, Ministry of Agriculture, Forestry and Fisheries
HIDEAKI OKADA, International Affairs Division, Fisheries Policy Planning Department, Ministry of Agriculture, Forestry and Fisheries
DOCTOR SACHIKO TSUJI, Section Chief of Temperate Tuna Research Group, National Research Institute of Far Seas Fisheries, Ministry of Agriculture, Forestry and Fisheries
PROFESSOR MORITAKA HAYASHI, Professor of International Law and Relations, Waseda University
PROFESSOR TAKANE SUGIHARA, Professor of International Law, Kyoto University
PROFESSOR KIMIO YAKUSHIJI, Professor of International Law, Ritsumeikan University
PROFESSOR SHIGEKI SAKAMOTO, Professor of International Law, Kansai University
PROFESSOR ATSUKO KANEHARA, Professor of International Law, Rikkyo University
PROFESSOR AKIRA TAKADA, Associate Professor of International Law, Tokai University
TSUTOMU WATANABE, Managing Director, Federation of Japan Tuna Fisheries
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Cooperative Associations
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YASUO IINO, Chief, Legal Research Section, The Institute of Cetacean Research
ROBERT T. GREIG, Esq., Cleary, Gottlieb, Steen & Hamilton
DONALD L. MORGAN, Esq., Cleary, Gottlieb, Steen & Hamilton
MATTHEW D. SLATER, Esq., Cleary, Gottlieb, Steen & Hamilton
MASAHISA IKEDA, Esq., Cleary, Gottlieb, Steen & Hamilton
JONATHAN J. GASS, Esq., Cleary, Gottlieb, Steen & Hamilton
DYLAN D. SMITH, Esq., Cleary, Gottlieb, Steen & Hamilton
As Advocates.
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P R O C E E D I N G S
PRESIDENT SCHWEBEL: Good morning. On behalf of
the members of the Arbitral Tribunal, I wish to welcome you
all to a hot and steamy Washington, to welcome the parties,
their agents and counsel to this opening session of the
Arbitral
Tribunal, formed to consider a dispute between Australia and
New Zealand, on the one hand, and Japan on the other, over
the fishing of Southern Bluefin Tuna.
The members of the Tribunal count it an honor and
a privilege to have been designated as arbitrators in this
proceeding. They wish to express their appreciation, which
the parties share, of the willingness of ICSID to place its
fine facilities at their disposal and to thank the ICSID
staff, as well, for the superb support it has given in the
preparation of these hearings.
It appears from the exchanges of correspondence
among the parties that there is acceptance of the title of
the dispute being The Southern Bluefin Tuna Case, Australia
and New Zealand versus Japan. I say "case," rather than
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"cases," because Australia and New Zealand wish to join the
cases, a wish as to which Japan has voiced no objection.
The current proceeding is confined to the question
of whether the Tribunal has jurisdiction over the dispute.
The Tribunal greatly appreciates the cooperative approach of
the parties. With the deft assistance of the ICSID staff,
they have reached agreement on a variety of procedural
questions. For its part, the Tribunal has considered these
questions in the light of the Parties' exchanges. I should
like to record the Parties' agreement and the Tribunal's
conclusions as follows:
The scheduling of the hearings. Japan, which has
advanced preliminary objections to the jurisdiction of the
Tribunal will begin and address the Tribunal for 5 hours
today; three this morning and two this afternoon. There
will be a 15-minute coffee break at an appropriate midpoint
this morning and in the afternoon. We anticipate running
until not very long after 1 p.m. today. Then the Tribunal
will adjourn until 4:00. That will afford both the members
of the Tribunal and counsel, many of whom have traveled a
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long way, a period for rest and reflection before the
afternoon session. We should adjourn about 6:30 p.m.
Tomorrow, when counsel for Australia and New
Zealand will speak, we anticipate a like schedule.
Tuesday, there will be no sitting.
Japan will speak in rebuttal Wednesday morning
between 10 a.m. and 1 p.m. Australia and New Zealand will
present their surrebuttal on Thursday morning between 10:00
and 1:00.
The Tribunal appreciates that the Parties have
particular perspectives on the timing of the delivery of the
rebuttal and surrebuttal. But having regard to the
interplay of a number of considerations, the Tribunal has so
concluded and trusts that this will be acceptable to the
parties.
Public access to the hearings. The Tribunal has
noted the essentially concordant views of the parties on the
question of public access to the hearings. In any event,
meeting at these excellent facilities of the World Bank
carries constraints. While this room, for an arbitral
hearing room, is large and commodious, seating is limited,
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not least because of the ample size of the delegations in
attendance. More than that, there are security
considerations that govern public access to the World Bank
building.
Since the parties are agreed on the release of the
transcript of the oral proceedings on the ICSID website, the
oral pleadings, in any event, will quickly enter the public
domain. But a moderate number of media representatives will
be accredited to attend the hearings, either in this room or
in an adjoining room with appropriate relay. And as you
will have noticed, photographers have been permitted to
record the opening of this session.
Press releases of the parties. The Tribunal has
considered this question, as well as precedence bearing upon
it, and concluded that the parties will remain free to issue
press releases and to respond to questions from the press.
At the same time, the parties will wish to avoid statements
that could complicate the dispute.
Release of the verbatim transcript of the
hearings. The parties agree on release of the transcript of
the hearings. They will have an electronic copy of the
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transcript on the day and a hard copy the next morning by 10
a.m. That provisional transcript will be placed on the
ICSID website at 5 p.m. of the day following the recorded
session. The parties will have until May 26th for any final
corrections.
Video recording of the hearings. The proceedings
will be recorded by a single camera that will not be
distracting or expensive. I believe that that completes
disposition of pending procedural matters. And if the
parties are in agreement, I should now like to call on the
agent of Japan to address the Tribunal.
Sir?
MR. YACHI: Mr. President and distinguished
members of the Tribunal, may it please the Court.
May I begin by saying how fortunate it is for
Japan and all of the countries concerned that this Tribunal
is presided over by such illustrious and authoritative
arbitrators. It is a great honor for me to have this
opportunity to present an opening statement on behalf of the
Japanese Government.
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Our counsels, Professor Nisuke Ando, Sir Elihu
Lauterpacht, Professor Shabtai Rosenne, and Professor
Vaughan Lowe, who are present with me in this Tribunal
today, will be presenting the position of the Government of
Japan.
Your Honors, at the outset, I should like to
emphasize the following point: Our delegation's appearance
before this Tribunal should not be taken to imply any
recognition of the jurisdiction of this Tribunal for any
purpose other than the determination of its own
jurisdiction. Japan has long been committed to the
settlement of disputes by peaceful means. Japan has spared
and will spare no efforts to resolve this dispute in a
peaceful manner. I have appeared in this Tribunal today
because of this unbending conviction that disputes should be
peacefully resolved.
However, as my colleagues and I will show, this
dispute has not been brought before this Tribunal in
accordance with its governing instrument, the United Nations
Convention on the Law of the Sea, hereafter referred to as
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UNCLOS, Part XV. This Tribunal lacks jurisdiction, and
therefore the claims of the Applicants should be dismissed.
Your Honors, as the Agent for the Government of
Japan, I should like to point out two fundamental pillars of
Japan's fisheries policy, focusing on Southern Bluefin Tuna,
hereafter I refer to as SBT, management.
The first pillar is the importance and
indispensability of scientific data for the conservation,
optimum utilization and management of stocks of marine
living resources. Japan is one of the world's most advanced
countries in the field of marine and fisheries scientific
research. It is natural that Japan, being the largest
consumer of fishery products, has responsibly endeavored to
maintain healthy fish stocks. Japan has been allocating
unmatched budgets each year, compared to Australia and New
Zealand, for marine and fisheries scientific research. We
have been faithfully contributing the most among the Parties
in terms of data submission to the Commission under the
Convention for the Conservation of the Southern Bluefin
Tuna, hereafter referred to as Commission and CCSBT. Under
any circumstances, scientific data are the basis for
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appropriate conservation and management policies. The
concern for the valuable stocks has its own legitimacy.
However, it is not possible to disregard the absolute
necessity of scientific data.
For the effective conservation and management of
SBT, more information, including the first-hand data, is
indispensable at this time. There is no doubt or difference
in opinion that the root of the current problem is that the
CCSBT Commission cannot make any decision on Total Allowable
Catch--I will refer to as TAC hereafter--since 1998. This
is because of the seriously differing assessments of the SBT
stock. Since then, 1998, the Parties have been catching
tuna, whether the catch is commercial or for research,
without any legally binding decisions of the Commission.
This is due to the lack of available data, and this results
from the Parties' strict enforcement of catch limitations
for more than a decade. Therefore, to recover the proper
functioning of the Commission, the collection of more data
is absolutely urgent and essential.
The real core of the issue is how to obtain data
and how much to catch in the research without adverse
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effects on the stock. It has never been a problem of who is
cooperating and who is not, or who is conserving and who is
not. All Parties have committed themselves to cooperate to,
conserve and manage SBT. What is needed is an agreement by
both sides respecting the appropriate Experimental Fishing
Program, hereafter referred to as EFP. We must agree on the
size of the catch and the methods of research, such as
deployment of the vessels. Only an EFP can produce the
solid, practical and direct information that is necessary
for estimating the invisible, unknown abundance of the stock
in the vast ocean within a realistic time frame. On this,
the Parties are in agreement. That is the reason why the
Applicants also agreed to develop a joint EFP. It is the
scientific result of an EFP that allows more accurate
assessment of the stock. If the result is promising, Japan
would propose to increase the TAC. And if a TAC increase is
approved by the CCSBT Commission, I am sure that Australia
and New Zealand, together with Japan, would propose some
increase of their own quota. On the other hand, if the
result of EFP shows that the stock is declining, all Parties
will have to accept the decrease of TAC and their quotas.
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This is how the SBT stock should be managed and conserved
under CCSBT.
The second pillar of Japan's fishery policy is
balancing the interests of all parties concerned in the
field of fisheries. Such balancing affords a basis for
cooperation. The drafters of UNCLOS were most concerned
with this. In each different field of issues, UNCLOS left
the implementation of cooperation for further conclusion of
an implementing agreement and the creation of a specialized
international organization. SBT stock management is one of
them.
To strengthen cooperation on the conservation and
optimum utilization of SBT stock, the CCSBT was concluded,
in good faith, by Japan, Australia and New Zealand in 1993.
This Convention was so constructed that the balancing of the
respective interests of the Parties was to be achieved by
negotiations and by decisions made by the Commission
established under the Convention.
In talking about balancing of interests in the
context of conservation and management of SBT, we should
note the highly migratory character of that species. We are
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concerned about the balance between the Parties, all of
which are fishing states. This dispute should not be
regarded simply as an ordinary dispute between conserving
coastal states and exploiting fishing states. Rather, we
are talking about how we all can continue to rationally
utilize SBT.
The Applicants are now asserting a policy in their
own interests. They say that Japan cannot contribute to
strengthening the operation of the CCSBT by implementing its
own method of conservation without their consent or
authorization. This is not the way to strike an appropriate
balance of respective interests. The CCSBT is for enhancing
the interests of all of the countries in cooperation to
conserve SBT. It is not for imposing the views or policies
of one nation upon the others. Japan is always dedicated to
making efforts at balancing respective opinions and
interests by listening not only to the other Members, but
also to outside experts.
As a long-time friend of both Applicants, Japan is
distressed by their allegations and by the manner in which
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the constructive history of past cooperation between our
Governments is being disparaged.
It must be understood that cooperation takes
perseverance and compromise on both sides. It cannot be
said that one Party is not cooperating because it does not
accept the views of the other Parties. One could just as
readily say that Australia and New Zealand are not
cooperating because they seek to veto Japan's proposal of a
joint EFP. Cooperation is achieved through mutual effort.
Cooperation is not build on subordination.
All the Parties should now give the highest
priority to further efforts to strengthen the CCSBT as a
comprehensive system of SBT stock conservation and
management. For that purpose, we must cooperate to
encourage non-member states and areas to participate in
CCSBT. Their catches are said to have increased to
approximately 5,000 MT per year.
Japan, Australia and New Zealand are the leading
states responsible for conservation and optimum utilization
of SBT. These three states have been exerting the utmost
efforts for conservation and management of SBT. We do not
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have time to spare for quarrels among ourselves. Japan's
policy goal is to renew and strengthen cooperative relations
between Japan, Australia and New Zealand in order to make
the CCSBT regime more effective.
Such cooperation can be achieved. Even now, while
this arbitration is in process, the parties have introduced
a mechanism of an independent panel of scientists to provide
direct recommendations to the CCSBT Commission. This was
achieved by Japanese initiative. Also, by Japan's strong
initiative, the Parties are further encouraging the non-
parties to join CCSBT. And I am convinced that the future
effectiveness of the CCSBT will be better achieved if this
Tribunal leaves CCSBT issues in the hands of the parties for
their further negotiation, as is the normal practice in
fisheries matters.
For all of the foregoing reasons, Japan has taken
a major step forward at a CCSBT Commission meeting in March
of this year in the hope of achieving consensus among the
Parties.
Reflecting on the fact that negotiations last year
broke up not on the principle of conducting an EFP, but on
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the question of the size of catch involved in an EFP, Japan
has put forward a new proposal for a new joint EFP which
involves a catch limit of 1,500 tons. This is the size of
the EFP proposed by Australia in May 1999. Now Japan, in
the spirit of compromise, and without prejudice to its legal
position concerning jurisdiction over this dispute and
without abandoning its scientific views, has agreed to
accept the EFP limit of 1,500 tons. That acceptance is not
confined to any Joint EFP. Japan's position was spelled out
in the Aide Memoire to Australia and New Zealand, dated 27
April 2000. There it was said that: "whatever the outcome
of the pending arbitration case, when Japan finds itself in
the future to be able legally to conduct its own EFP, Japan
would be committed to conducting its own EFP in the same
manner as proposed in the Joint EFP. That means an EFP with
a maximum catch level of 1,500 MT each year for two years
and subsequent deduction of any possible excess over the
maximum catch level from Japan's national allocation." That
is paragraph 9 of the said Aide Memoire. Japan also remains
firmly committed to cooperate and negotiate in good faith
with Australia and New Zealand within the framework of the
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CCSBT, in relation to the conservation and management of SBT
stocks.
This 1,500 MT limit is more rigorous than any
previous EFP proposal of any Party. It carries with it the
requirement that any catch beyond 1,500 MT will require a
corresponding reduction in the next year's commercial
allocation.
The new limit will be explained in detail by
Professor Ando. And the implications of this proposal for
this arbitration will be explained by Professor Lowe later
on.
Mr. President and distinguished members of the
Tribunal, in short, Japan's basic stance with respect to
this dispute can be described as follows: Japan's principal
position is that the request being made by Australia and New
Zealand constitutes a misuse of the compulsory procedures
for the settlement of disputes provided for in Section 2,
Part XV of UNCLOS. This compulsory procedure must not be
abused by Australia and New Zealand to achieve what they
could not do under CCSBT. It cannot be used to impose their
own policies or scientific views on Japan. The Tribunal is
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being called upon to set a quota for Japan with no
scientific or legal basis. The Tribunal must not act as a
tool for implementing Australia and New Zealand's own
policy. If their view prevails, that would distort the
basic regime of the Law of the Sea, namely, UNCLOS and the
many more specific international agreements related to its
purposes. This point will be further elaborated by Sir
Elihu.
If the Applicants want absolutely a legally
binding solution, Japan's proposal for CCSBT Arbitration is
always open and provides a proper basis for jurisdiction.
But as a matter of principle, Japan does not accept this
abuse of the compulsory procedures under UNCLOS.
I will now outline the manner in which Japan will
present its case.
First, my distinguished colleague, Professor Ando,
President of the Japanese Association of International Law,
will recall several of the pertinent facts that underlie
this case. He will demonstrate that the dispute now before
the Tribunal is, in truth, not a dispute about the
interpretation or application of UNCLOS. It is instead one
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about the interpretation or implementation of the CCSBT. He
will also speak further about the significant contribution
that Japan has made to the elimination of the current
controversy by its declared willingness to limit the size of
future EFPs to 1,500 tons per year.
Professor Ando will be followed by Sir Elihu
Lauterpacht, who is, I am sure, well known to the Tribunal.
He will devote much of his argument to a consideration of
the legal relationship between UNCLOS and the CCSBT. The
purpose of his detailed examination will be to satisfy the
Tribunal that, notwithstanding Australia and New Zealand's
allegations to the contrary, this case can only truly be
characterized as a CCSBT case. An important element in this
argument is the obvious feature that the CCSBT is a lex
specialis. The UNCLOS is a lex generalis, the relevant
content of which is entirely taken over and subsumed in
CCSBT. Sir Elihu will, finally, demonstrate the
extraordinary and unforeseen impact that the Australian and
New Zealand theory about the scope and the role of the
compulsory procedures of UNCLOS Part XV would have upon the
scores of treaties that deal with matters related to the
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purposes of UNCLOS. Those special treaties, of course, were
not intended to be subject to any form of compulsory dispute
settlement under UNCLOS Part XV.
Sir Eli will be followed by Professor Rosenne,
whose eminence in this field makes any further introduction
by me unnecessary. He will address matters on the
assumption that contrary to Japan's principal submission,
the case is one which also falls under UNCLOS. I emphasize:
Professor Rosenne's argument is predicated on an assumption
that Japan believes to be wrong, but which prudence requires
should be dealt with. He will demonstrate that Australia
and New Zealand have not satisfied preconditions established
in UNCLOS Part XV, Section 1, for the commencement of the
litigation and, that therefore, this Tribunal may not
proceed with the case.
Professor Rosenne will be followed by Professor
Lowe, Chichele Professor of Public International Law at
Oxford University. He will develop three submissions. The
first is that, by reason of the essentially scientific
character of the issues involved, the case not justiciable.
It is not appropriate for settlement by a purely legal
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tribunal. Professor Lowe will argue, secondly, that the
manner in which Australia and New Zealand have presented its
case is an abuse of process. Lastly, he will spell out the
legal consequences of the facts set out by myself and
Professor Ando. He will demonstrate that the foundation of
the dispute has disappeared, and that the case has,
therefore, become moot.
Thank you very much, Mr. President and
distinguished Members of the Tribunal. I now respectfully
request you to call upon Professor Ando. Thank you very
much.
PRESIDENT SCHWEBEL: Thank you so much, Mr. Yachi.
Professor Ando, please.
PROFESSOR ANDO: Mr. President, distinguished
Members of the Tribunal.
It is a great honor and a privilege for me to be
given this opportunity by the Japanese Government to present
its views before this august Arbitral Tribunal. This
Tribunal is established under the provisions of Annex VII of
the United Nations Convention on the Law of the Sea
(hereafter UNCLOS), and its duty at this stage is to
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determine if it has jurisdiction over the dispute between
Japan and Australia/New Zealand concerning a species of fish
called Southern Bluefin Tuna (SBT hereafter). The purpose
of my presentation is to clarify facts relating to the
dispute in order to show that the dispute falls under the
Convention for the Conservation of SBT (CCSBT hereafter),
concluded by the three Parties in 1993 and this Tribunal,
which is established solely to decide on the interpretation
and application of UNCLOS, does not possess jurisdiction to
judge the dispute.
As the Members of the Tribunal may know, Japan is
a narrow island State, heavily populated, and yet an
overwhelmingly large portion of its land consists of hilly
mountains. This prevents the development of large scale
agriculture and domestic animal raising. As a result,
Japanese people must rely on fish as a main source of
protein. Thus, fishing as well as fish eating has come to
form an integral part of Japanese culture. Unfortunately,
we do not have the luxury of raising cows and sheep, as
Australians and New Zealanders do. For this reason, Japan
is a state with a great, perhaps the greatest concern and
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responsibility for the conservation as well as the
management of various fish including SBT. This concern and
responsibility is well reflected in the fact that Japan has
developed marine fisheries science, whose high standard and
contribution are appreciated in many parts of the world.
Mr. President and distinguished Members of the
Tribunal, now I come to the substance. My presentation is
divided into two parts. In the first part I will provide
the Tribunal with facts which have led to the present
dispute, including those relative to the Experimental
Fishing Program (hereafter EFP), so as to show that the
dispute has arisen under CCSBT, and therefore UNCLOS Part XV
does not apply. In the second part I will report to the
Tribunal certain recent developments which have been
mentioned by the agent for the Japanese Government, Mr.
Yachi, and argue that those facts eliminate any recognizable
UNCLOS dispute between Japan and Australia/New Zealand. In
my presentation I may refer briefly to certain facts of a
technical nature. I will do so only insofar as such facts
are relevant to the question of jurisdiction, or insofar as
they provide helpful context. No effort will be made at
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this stage of the proceedings to present the facts in
exhaustive detail.
Mr. President and distinguished Members of the
Tribunal, the basic framework of the Japanese position is
that the dispute between Japan and Australia/New Zealand is
of a scientific or technical nature which arises in the
context of the CCSBT, particularly in the work of the organs
established under that convention. The facts relating to
this dispute are briefly set out in paragraphs 17 to 19 of
the Japanese Memorial, and it is not necessary for me to
repeat them here. But it is worthwhile recalling that Japan
has participated fully in the efforts that Australia, New
Zealand and Japan have together made to achieve significant
reductions in the total SBT catch through informal
negotiation over the years. In 1985 Japan and Australia/New
Zealand reduced their total amount of catch to 38,650 metric
tons (hereafter MT), and, in 1989 to 11,750 MT. Japan's own
contribution to this achievement was a reduction of its
catch by 74 percent, from 23,150 MT in 1985 to 6,065 MT in
1989.
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The negotiating efforts of the three States
produced the CCSBT in 1993. The main features of the
Convention have been described in paragraphs 28 to 48 of the
Japanese Memorial. Here I only point to a few of them. The
object of the Convention is to ensure, through appropriate
management, the conservation and optimum utilization of SBT.
To attain this object, the Convention established the
Commission for the Conservation of SBT (hereafter the
Commission), the regional organization providing the
framework under which the Parties bind themselves to
measures relative to conservation and optimum utilization of
SBT. The Commission is composed of representatives of each
of the three State Parties, and its decisions are taken by
unanimous vote of the Parties. The main function of the
Commission is to decide upon a total allowable catch
(hereafter TAC), and its national allocations among the
Parties based on various factors including relevant
scientific evidence and the need for orderly sustainable
development of SBT fisheries. The Convention also
established a Scientific Committee, which is constituted by
one representative of each of the Parties. The Scientific
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Committee analyses the status and trends of SBT stock and
makes recommendations to the Commission on conservation,
management and optimum utilization of the stock.
Furthermore, the Convention contains provisions for the
settlement of disputes among the Parties to which Sir Elihu
Lauterpacht will refer later. I may add that the Commission
established as the management goal the recovery of SBT
parental stocks to the 1980 level with 2020 as a target year
for achieving this objective.
In the course of the activities of the Scientific
Committee, the Parties' scientists disagreed over whether
the conservation efforts of the late 1980s and 1990s have
subsequently led to recovery of the SBT stock. Japanese
scientists have taken the view that the stock has recovered
sufficiently to support additional catches. Australian and
New Zealand scientists have taken a different view. One
major cause of this difference of opinions lies in the
different weight assigned by the Parties' respective
scientists to certain hypotheses relevant to the assessment
of stock status. These hypotheses makes certain assumptions
about fish density in areas and times where fishing once
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took place but no longer does, as compared to fish density
in areas and times where fishing still takes place.
Compared to Japan's scientists, Australia's and New
Zealand's scientists assign more weight to a hypothesis
which assumes that there are no fish in times and areas
which are no longer fished. Consequently, they tend to be
more pessimistic about the possibility of stock recovery.
It has been the view of the Japanese Government
that in order to reduce scientific uncertainty with respect
to the fish recovery, further additional data for analysis
are essential. For that reason, Japan has made successive
proposals for a joint Experimental Fishing Program over the
past several years. An EFP is designed to reduce scientific
uncertainty in stock assessment by gathering data about SBT
in times and areas where commercial fishing no longer takes
place. It involves additional SBT catch above the existing
TAC. By gathering otherwise unavailable data about the SBT
in unfished times and areas, the EFP can help to resolve one
of the chief sources of uncertainty that leads the Parties
to diverge in their stock assessment and predictions for
recovery. When submitting a series of revised proposals for
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implementing a joint EFP, Japan has taken into account a
variety of comments and concerns of Australia/New Zealand.
However, in the end, Australia/New Zealand did not accept
these Japanese proposals.
At this juncture, I draw to the attention of this
august Tribunal two points. First, the last TAC of 11,750
MT, as well as national allocations to which Japan and
Australia/New Zealand agreed in 1989 and then annually
through 1997, were not to be regarded as something permanent
or unchangeable. On the contrary, the figures were the
product of careful trilateral negotiation. This
negotiation, consistent with the requirement of CCSBT, took
into account a variety of factors such as the past record of
SBT catches and economic needs at that time. Consequently,
the figure of 11,750 MT was to be kept under constant
examination as to its validity. Depending on the result of
scientific assessment, it could have been revised either
upwards or downwards. Secondly, Japan continued to accept
this TAC and national allocations up through 1997, mainly
because a new agreement on the figure was never reached, and
partly because Australia put pressure on Japan by linking
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this issue with Japanese fishing rights in the Australian
Exclusive Economic Zone and with the use of Australian ports
by Japanese vessels.
Now, Japan's scientific analysis continued to
indicate the high prospect for SBT stock recovery.
Nonetheless, in 1998 Japan's proposal for a joint EFP was
again not accepted by Australia and New Zealand, although
there was a common agreement on the usefulness of an EFP
among the Parties. Nor was agreement reached with respect
to TAC that year. Under the circumstances and in the
absence of a legally-binding decision by the Commission,
Japan found itself left with no other choice but to proceed
with its proposed EFP in order to collect necessary
scientific data. The pilot EFP was conducted from July to
August 1998 with a catch of approximately 1,400 MT.
Independent scientists who had been invited by the three
states Parties to assist the Commission confirmed that there
was a need for the type of data that Japan's EFT was
designed to obtain. In conducting its EFP Japan
accommodated as much as possible Australia/New Zealand's
comments. The results of the 1998 pilot EFP was reported to
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the EFP Working Group created by the three States under
CCSBT. I will explain about this group immediately.
Australia/New Zealand protested against the
Japanese action, asserting that it was a violation of CCSBT,
and invoked the dispute settlement procedure under that
Convention. Negotiations began among the Parties in
December 1998 under Article 16, paragraph 1 of CCSBT. The
three States agreed to create an EFP Working Group--this is
the group I mentioned--to develop a joint EFP to be
submitted for consideration by the Commission, ideally by
mid-April 1999. The Working Group comprised not only the
representatives of each State Party but also independent
scientists who could play an adjudicatory role in providing
advice to the Commission in case a consensus could not be
reached. A consensus appeared to have been reached on some
aspects of an EFP for 1999 in the Working Group meetings
between February and April 1999. To the extent that there
was remaining disagreement, Japan expressed its willingness
to accept the adjudicatory role of the independent
scientists, but Australia/New Zealand were opposed to it.
During the annual meeting of the Commission in May 1999 and
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the subsequent bilateral exchange, Australia proposed to
accept an additional 1,500 MT catch for the EFP above the
existing TAC. Japan proposed a compromise figure of 1,800
MT. However, the Parties failed to reach agreement in the
end. Faced with this situation and the need to gather
additional scientific data, Japan decided to conduct an EFP
from June to August 1999, again accommodating as much as
possible Australia/New Zealand comments including those on
tagging survey and random sampling. Late in June 1999,
Japan proposed mediation to Australia/New Zealand under
Article 16, paragraph 1 of CCSBT, noting that in had
ascertained the willingness of the Indian Ocean Tuna
Commission, the Food and Agriculture Organization, the
European Union and the United States to serve as mediators
if requested. Lastly, on 14 July 1999 Japan proposed
arbitration under Article 16, paragraph 2 of CCSBT. All
these efforts failed, and Australia/New Zealand initiated
proceedings under UNCLOS.
As to the details of exchanges among Japan,
Australia and New Zealand, I will merely refer the Tribunal
to paragraphs 49 to 95 of the Japanese Memorial. For
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present purposes, I would like to summarize what all these
facts reveal in four points.
1) Japan has consistently made efforts to review the
validity of TAC and its national allocations established in
1989, and for that purpose, to gather data so as to reduce
scientific uncertainty about the current status and prospect
for future recovery of SBT stock;
2) On the other hand, Australia/New Zealand have
consistently attempted to maintain the original TAC and
national allocations, from 1989 to 1993, under the
trilateral agreement, and then from 1994 to 1997 under the
CCSBT;
3) The reason behind this difference of attitude of
the respective State Parties lies in their difference of
assessment with respect to the current status and prospect
for recovery of SBT stock;
4) That difference of assessment stems from a
difference of scientific judgement between Japan and
Australia/New Zealand, which does constitute the basic cause
of the dispute between the Parties concerning SBT.
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Thus, as conclusion of the first part of my
presentation, I would like to point to the following:
1) The dispute is essentially of a scientific or a
technical nature and is inappropriate for judicial
resolution. This point will be elaborated later by
Professor Vaughan Lowe;
2) Even if the view is taken that the dispute has a
legal nature, the facts show that it falls within the
framework of CCSBT, and that it could and should be resolved
under the dispute settlement procedure provided by CCSBT;
3) It is true that Australia/New Zealand, starting as
late as 31 August 1998, have asserted that UNCLOS and
customary rules of international law are also applicable to
this dispute. As a matter of fact, Sir Elihu is going to
refer to an earlier note of New Zealand dated 14 July 1998,
in that connection, but I leave it to him. However, apart
from referencing disputes under the CCSBT, Australia and New
Zealand have not attempted to link any particular act of
Japan with any particular provision of UNCLOS, to say
nothing of rules of customary international law. All they
say, in essence, is that Japan, by conducting its EFP, is
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acting in violation of CCSBT and is in breach of the four
articles of UNCLOS said to be applicable to this dispute.
In other words, they are unable to develop any persuasive
argument that is detached from CCSBT and is based on UNCLOS.
All the speaker that follow, Sir Elihu Lauterpacht,
Professor Shabtai Rosenne, and to a certain extent,
Professor Lowe, are going to elaborate on this central
issue.
Mr. President and distinguished Members of the
Tribunal, now I would like to turn to the second part of my
presentation. First of all, I would like to emphasize the
following three points:
1) Japan and Australia/New Zealand have all
acknowledged that an EFP in principle could be helpful in
gathering additional data so as to reduce scientific
uncertainty with respect to the current situation of SBT
stock and the prospect for its future recovery;
2) Japan and Australia/New Zealand have also
recognized that as a practical matter any effective EFP must
depend on commercial fishing. This is because of the need
to maintain consistency with existing data from earlier
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commercial fishing, and because of a large number of vessels
necessary to conduct an EFP. It should be stressed in this
connection, these vessels participating in EFPs suffer
economic losses. They must be compensated for their
participation. This has been true of Japan's EFPs, as
Australia/New Zealand are well aware;
3) In contrast to their agreement on the usefulness
of an EFP as well as on the use of commercial vessels for
EFP purposes, Japan, Australia and New Zealand have failed
so far to agree about how to implement an EFP, that is, to
agree on the method and the amount of SBT catch involved in
an EFP. In this context, the following facts bearing upon
Japan's efforts to achieve consensus should be noted: that
Japan refrained for several years from acting upon its
proposal before finally conducting its EFP, and that Japan
has incorporated into its EFP significant and costly
elements as suggested by Australia/New Zealand.
Mr. President and distinguished Members of the
Tribunal, negotiation concerning the EFP resumed, and I
stress, on 21 March this year, 2000, at the Sixth Annual
Meeting of the Commission for the Conservation of SBT, Japan
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submitted a new proposal for a joint EFP. The main features
of the proposal are as follows--I will divide them into
four:
1) A working group should be created to establish a
joint EFP with the participation of independent scientists,
as well as Japan, Australia and New Zealand;
2) The working group should promptly begin a
discussion of the joint EFP so that the EFP may commence by
August 2000 at the latest;
3) Based on the consensus among Japan, Australia and
New Zealand at the last year's EFP Working Group--I referred
to them earlier--on a three-year duration of the EFP, this
joint EFP should end in 2001, provided that the data from
the 1998 pilot EFP as well as the 1999 EFP are properly
incorporated;
4) While Japan believes that a reasonable EFP catch
at a level previously proposed by Japan would not adversely
affect the SBT stock, Japan took account of Australia/New
Zealand's position and proposed, in order to achieve a
consensus, that the maximum catch for the new EFP should be
set at the level of 1,500 MT for each year. If the actual
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catch should unavoidably exceed the agreed maximum, any
excess would be deducted from the subsequent year's national
allocations for the State Parties participating in EFP.
Mr. President and distinguished Members of the
Tribunal, as the Japanese Agent, Mr. Yachi pointed out, this
is an entirely new proposal on the part of Japan. The most
important feature of the proposal for present purposes is
Japan's commitment to limit the EFP catch to 1,500 MT. This
figure is indeed an absolute cap. Any catch over this
amount is to be automatically deducted from national
allocations of the States which participate in the EFP.
In addition, it must be remembered that the figure
of 1,500 MT was a figure proposed by Australia in May 1999.
In fact, in August 1999, the Australian Agent, Mr. Campbell,
clearly referred to the figure around between 1,200 and
1,500 MT as acceptable to Australia during the proceedings
before the International Tribunal for the Law of the Sea.
This implies that Australia believes that an EFP catch of
1,500 MT will not significantly impact the prospect for
recovery of SBT stock.
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Absent disagreement over the size of the EFP,
there remains only the issue of differences over EFP
methodology. However, the new Japanese proposal suggests
the creation of a working group for a new joint EFP, and the
group will comprise members of the three states along with
independent scientists. If there is any remaining
difference of views among Japan, Australia, and New Zealand
concerning the methodology for the EFP, that difference
should not constitute an insurmountable obstacle to the work
of the group. Each of theÊthree States is guaranteed an
opportunity to have its voice heard in the group. Moreover,
the independent scientists could certainly help to reconcile
any differences. As it has been the case in the past, Japan
is prepared to subject its views to the scrutiny of these
independent scientists. If Australia and New Zealand are
prepared to adopt a similar attitude, the Parties' remaining
differences should not unreasonably prolong the work of the
group.
Thus, it may be expected that agreement on the
method of EFP could be reached by the three States without
too much delay. Then, the last difference of views will be
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resolved, and the dispute between Japan and Australia/New
Zealand will be eliminated. In all events, however,
disagreements in scientific judgement concerning the EFP
methodology do not constitute disputes subject to compulsory
arbitration under UNCLOS, even if the Australian/New Zealand
strained reading of that document is adopted.
Mr. President, distinguished Members of the
Tribunal, now I would like to summarize my presentation.
In the first part of my presentation, I concluded
that this dispute is essentially of a scientific nature and
is inappropriate for judicial settlement. I also concluded
that even if the dispute were considered to be of a legal
nature, it falls exclusively under CCSBT and could and
should be resolved under the dispute settlement procedure
provided by CCSBT itself. In the second part of my
presentation, I discussed the new Japanese proposal
concerning a joint EFP and concluded that the proposal will
work to eliminate the dispute altogether.
In conclusion, I respectfully request that this
august Tribunal dismiss Australia/New Zealand's claims for
its jurisdiction over the present case and encourage the
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Parties to overcome their scientific disagreement within the
framework of CCSBT.
I thank you very, very much for your patience and
attention, and ask you kindly to call on Sir Elihu
Lauterpacht to make his presentation on behalf of the
Japanese Government.
Thank you.
PRESIDENT SCHWEBEL: Thank you very much,
Professor Ando.
Sir Elihu, please.
SIR ELIHU LAUTERPACHT: Mr. President, would you
be kind enough to indicate what time you would like to
break?
PRESIDENT SCHWEBEL: I believe coffee will be
ready at 11:15. Is that correct? Yes. At 11:15, we will
be breaking, of that order. I mean, we do not have to break
on the dot.
SIR ELIHU LAUTERPACHT: I will proceed in that
way.
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Might I ask, Mr. President, if the hearing books,
volumes of this character, of which one has been prepared
for each member of the Tribunal, could be distributed?
Mr. President and Members of the Tribunal, I feel
greatly privileged to be appearing before you on behalf of
the Government of Japan in these proceedings. It gives me
immense pleasure to address a tribunal of such a
distinguished composition.
There are a couple of housekeeping matters to
which I should address myself first. You have just been
handed a volume which I will call the hearing book and which
will be used by myself and my colleagues. It contains
various items which will be referred to in argument as we go
along. There is nothing new in there, only items that have
been in the papers before the Tribunal already.
It does not include the whole text of UNCLOS, the
1982 Convention. That has been handed to you separately,
but there are some extracts in the hearing book to which we
shall be referring particularly.
You will find at the beginning of the hearing book
a table of contents, and the first item in the hearing book
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is a list of abbreviations from which, as I have prepared it
myself, I see I made one major omission, namely the letters
"A/NZ" to which we shall be referring constantly. It is not
exactly a Freudian slip, but it is an oversight.
The references to the written pleadings and the
sources that appear in the arguments will not normally be
read to the Tribunal, but we will request the reporters to
include them in the transcript. This is the normal
procedure, as you know, in international proceedings.
Mr. President, it falls to me to present to the
Tribunal a number of arguments relating to some of the core
elements in the Reply of Australia and New Zealand of 31
March 2000. In so doing, I shall try not to repeat
arguments already presented in the Japanese Memorial, though
all of that document remains in my submission fully valid.
Rather, I will try to follow the main features of the Reply
and respond to them, even in some instances in considerable
detail.
However, before proceeding to the substantive
response, there are three preliminary observations to be
made.
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The first is that Japan wishes to emphasize that
it does not contest the jurisdiction of this Tribunal
because it is opposed to impartial third-party determination
of the dispute that has arisen. Quite the reverse. Japan,
on 14 July of last year, proposed arbitration to A/NZ.
(A/NZ R.A. 32) This proposal under CCSBT, the 1993
Convention, was somewhat brusquely rejected for reasons that
were never satisfactorily explained. So the issue now
before the present Tribunal is not about whether the dispute
should be settled by arbitration. It is about whether the
dispute should be settled by arbitration in the manner which
suites A/NZ--that is to say, an arbitration pursued under
the terms and conditions and within the framework of the
1982 Law of the Sea Convention--or whether it should be
dealt with in the manner contemplated in the governing
treaty, the 1993 Convention on the Conservation of Southern
Bluefin Tuna, CCSBT.
This, I must emphasize, is not a merely formal
question. For Japan, it is one of major principle, and not
for Japan alone. As will be demonstrated, it is an issue
that affects the treaty relations of virtually every State
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in the world. Japan believes, and the facts in its
submission overwhelmingly indicate, that the substance of
the present dispute relates to the interpretation or
implementation of CCSBT. This Convention contains a
provision in the shape of Article 16 that deals with the
settlement of disputes relating to that Convention. In
Japan's view, those provisions are the only ones that may be
used for the settlement of a dispute arising in relation to
the Convention.
Mr. President, CCSBT, if you wish to consult it,
is Item B, flag B, in the hearing book.
Japan regards as entirely out of order what it
sees as a high-handed attempt by A/NZ peremptorily to force
Japan into a mode of settlement of a question relating to
Southern Bluefin Tuna that falls outside the terms of
Article 16 of CCSBT.
There was, no doubt, a good reason in the minds of
A/NZ for this abandonment of the relevant treaty provision.
A/NZ saw in the application of UNCLOS, Part XV, a system
that would enable them to seek provisional measures from
ITLOS, the International Tribunal of Hamburg.
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Such a procedure would not as rapidly have been
available under the CCSBT. But whatever may have been the
reason for the A/NZ abandonment of CCSBT Article 16, it
cannot justify in law the course which A/NZ has adopted.
Article 16 of CCSBT was, as I shall presently have
occasion to repeat, a dispute settlement provision that was
adopted by the Parties without significant disagreement. It
was certainly not imposed by Japan upon A/NZ. IT follows a
line of precedents in international agreements, many of them
relating to matters containing a Law of the Sea element. If
it is to be abandoned simply because A/NZ has perceived some
transient tactical advantage in employing UNCLOS procedures,
the knock-on effect in relation to scores of other treaties
with similar provisions will be very disturbing to the
international community.
The actual substantive disagreement between the
two sides is very limited in scope. They are in agreement
that in order to assess the degree to which SBT is
recovering by reason of the steps that they have, all three
Parties, taken to establish and adhere to an agreed division
of the total allowable catch, the conduct of an Experimental
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Fishing Program is desirable. They have negotiated at
length about it within the only relevant framework, namely
the terms and institutions of CCSBT. Ultimately, when it
came to the moment of final disagreement, the difference
between their respective position was no more than 300 MT
per year, 1,500 MT being acceptable to Australia/New Zealand
and 1,800 MT to Japan. And as a gesture of compromise to
its CCSBT partners, as the Agent and Professor Ando have
both declared, Japan is now prepared to reduce its EFP to
1,500 MT, a figure that was acceptable to A/NZ.
But this willingness on the part of Japan to
compromise on the substance must not be seen as a
willingness to compromise on principle. When states agree
to a given approach to dispute settlement, they must adhere
to it, and this is so even when the approach that they have
chosen is one that does not include an obligatory
arbitration procedure. The Parties chose Article 16 of
CCSBT freely, voluntarily, without any element of
compulsion, and, I must stress, in conformity with widely
prevalent international practice in this class of matter.
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I turn to my second preliminary remark which
relates to the chronological order of CCSBT and the UNCLOS
Conventions and the significance of that order.
The Tribunal will, of course, already be aware of
the central importance in this case of the relationship
between CCSBT and UNCLOS. I hardly need to remind the
Tribunal that Japan's case is that the treatment of SBT is
now controlled by CCSBT alone, and thus UNCLOS, the 1982
Convention, has no substantive bearing on the matter. In
consequence, the dispute settlement provisions of UNCLOS
Part XV are not applicable here. The A/NZ case, of course,
is the opposite, namely that UNCLOS is the controlling
instrument and the role of CCSBT, such as it is, is
subsidiary to UNCLOS.
The issues of the substantive and procedural
relationship between the two Conventions will be examined in
detail later in the light of the arguments deployed in the
A/NZ Reply, but it is desirable that one aspect of the
relationship should be clarified at the outset. That is the
question of when each of these two instruments acquired
legally binding force.
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The assumption has prevailed that because UNCLOS
was adopted in 1982 and CCSBT was concluded in 1993, UNCLOS
was the first treaty and CCSBT was the second. Indeed, the
Japanese Memorial states as much in paragraph 127 where it
says "there can be no doubt that UNCLOS is an 'earlier'
treaty than CCSBT." And this statement was not questioned
in the A/NZ Reply. There, in paragraph 157, A/NZ stated
that "UNCLOS was adopted in 1982 before the 1993
Convention." The same paragraph continues: "However, that
does not lead to the automatic conclusion, as stated by
Japan, that the 1993 Convention as the later treaty prevails
over UNCLOS." One may legitimately deduce from this last
A/NZ statement that they also shared the view that CCSBT is
the later of the two treaties.
However, the position is not quite so simple as
the views hitherto expressed by the two sides may suggest.
It is necessary to qualify the approaches adopted in the two
written pleadings by referring to the implications of the
basic facts set out in paragraph 20 of the Japanese
Memorial. It was there noted that UNCLOS was adopted on 10
December 1982, but did not enter into force until 16
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November 1994. Australia ratified the UNCLOS on 5 October
1994. Japan did so on 20 June 1996, and New Zealand only on
19 July of 1996.
This last date, therefore, is the earliest that
UNCLOS bound all three Parties to CCSBT and the present
case.
The International Tribunal at Hamburg came into
existence on 1 October 1996.
As regards CCSBT, it was adopted on 10 May 1993
and entered into force on 20 May 1994.
The legal position, therefore, seems to be as
follows. CCSBT was in force and operative some 26 months
before UNCLOS became legally binding as between all three
Parties to this case. It was another 3 months, that is to
say, 29 months in all, before the three Parties to UNCLOS
here involved would have been able to have had recourse to
the Tribunal at Hamburg. Thus, for some 26 months, from 20
May 1994 until 19 July 1996, the treatment of Southern
Bluefin Tuna was regulated exclusively by CCSBT without even
the possibility of recourse to the terms and procedures of
UNCLOS, and ITLOS did not become available even
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theoretically until it was established some months later on
1 October 1996.
In noting these considerations, it is, of course,
necessary to recall the terms of Article 18 of the Vienna
Convention on the Law of Treaties which requires States that
have signed a treaty to refrain from acts which would defeat
the object and purpose of the treaty pending the entry into
force of the treaty. So it may be assumed that the Parties
to CCSBT did not regard themselves in 1993 as doing anything
that would defeat the object and purpose of UNCLOS. Indeed,
it should also be recorded that the Preamble of CCSBT itself
noted the adoption of UNCLOS in 1982.
So where do these considerations lead us? The
most important conclusion to be drawn is that CCSBT was seen
by the Parties as freestanding, as being by itself
sufficient to meet the needs of the situation--the
conservation and management of SBT--for at least the period
of 26 months between the entry into force of, first, CCSBT
between the three Parties and, second, UNCLOS as between the
three Parties. It hardly seems likely, therefore, that the
Parties would have seen the content of their SBT
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relationship as being in any degree legally enhanced or
affected by the entry into force of UNCLOS as between them.
Of course, it remains a fact that the Parties knew
at the time of the conclusion of CCSBT that UNCLOS was
likely to enter into force eventually. But in May 1993,
when they concluded CCSBT, they could not have been certain
when that would be, especially as the Agreement relating to
the implementation of Part XI of UNCLOS, upon which the
participation of a number of important countries was
dependent was not then concluded and in fact was not signed
until 21 July 1994.
So, at the time of the conclusion and even the entry
into force of CCSBT, no one could have said with any
confidence when, or perhaps even whether, UNCLOS was going
to enter into force.
Evidently, the operation of UNCLOS was not a
factor which entered into the consideration of the Parties.
It seems, therefore, legally impossible that UNCLOS could
then have played the role that A/NZ now seek to attribute to
it. And if it was impossible at the inception of CCSBT, it
is difficult to see why the entry into force of UNCLOS could
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have changed the situation or have increased the density of
the treaty relations between the Parties regarding SBT in as
radical a manner as A/NZ now assert.
Japan submits, Mr. President, that this
consideration is really determinative of the relationship
between CCSBT and UNCLOS. CCSBT is the governing treaty.
UNCLOS is not. But if the Tribunal takes the view that the
relationship must be assessed on the basis of the
interpretation of both texts, Japan adheres as a principaled
alternative to the arguments that it developed in its
Memorial on the basis that UNCLOS was the earlier of the two
instruments.
Mr. President, I could conveniently pause here.
PRESIDENT SCHWEBEL: Thank you so much, Sir Elihu.
The proceedings will now suspend for 15 minutes.
You will find coffee outside to the right as you exit the
room.
[Recess.]
PRESIDENT SCHWEBEL: Sir Elihu, can you resume,
please?
SIR ELIHU LAUTERPACHT: Thank you, Mr. President.
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Before I return to my argument, may I just draw to
the attention of the Tribunal the fact that there are at the
back of the hearing book under Tab O, the outlines of the
various speeches. You will find an outline of the Agent's
introduction and then an outline of Professor Ando's
presentation, and then you will find as the very last sheets
in the book two pages of my outline. So you may perhaps
find it helpful to have that available to you, and if you
look at it, you will see the point that I had reached before
the break. In Part 1 of my introductory observations, I had
concluded the second item, the chronological order of CCSBT
and UNCLOS. So, with your leave, I now turn to the third
point, the failure to proceed against third parties.
The Japanese Memorial draws attention to the fact
that fishermen from Indonesia and the Republic of Korea are
significantly involved in SBT fisheries. Both those
countries are parties to UNCLOS. A/NZ could, therefore,
have proceeded against them under UNCLOS Part XV and on the
basis of the same violations of UNCLOS as are alleged
against Japan, namely violations of Article 64 and 116 to
119.
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Japan drew two conclusions from this
consideration. The first was that the fact that A/NZ have
not sued Indonesia or the Republic of Korea under available
UNCLOS procedures suggests that what really matters in the
present proceedings is the relationship under CCSBT, not the
relationship under UNCLOS.
Otherwise, why didn't A/NZ direct its UNCLOS
attack against other UNCLOS parties which participate in an
unregulated taking of SBT that now exceeds 5,000 MT? This
quantity of catch is far more harmful to the SBT than is the
claimed impact of the 300 MT that separates the figures for
EFP proposed by Japan and the figure that was acceptable to
A/NZ in the negotiations.
In its Reply (paras. 173-176), A/NZ disregarded
this point. They focussed instead on the second and lesser
point made in the Japanese Memorial, namely, that Indonesia
and the Republic of Korea are necessary and proper parties
to the proceedings. For present purposes, however, what
matters is not whether A/NZ's reaction on this lesser point
is correct, but the fact that A/NZ chose entirely to
disregard the first of the two points made in the Japanese
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Memorial, paragraph 97. A/NZ has offered no explanation of
why in their capacities as self-appointed guardians of the
integrity of the SBT stock, they chose to limit their
initiative under UNCLOS to bringing proceedings against
Japan when they could equally well have done so against
Indonesia and the Republic of Korea, also. The conclusion
that Japan draws from A/NZ's failure to seek UNCLOS recourse
against Indonesia and the Republic of Korea is that it
eloquently demonstrates A/NZ's realization that CCSBT is the
only effective legal link between them and Japan in relation
to SBT, and that proceedings based on UNCLOS alone will get
nowhere. A/NZ have remained silent on this point.
Mr. President, I shall now turn to consideration
of the substance of the A/NZ Reply. First, the decision of
ITLOS and the proposition that no weight should be attached
to it. The first point that calls for comment is the use
that A/NZ has made of the ITLOS Order of 27 August 1999 on
Provisional Measures. This has not been placed in the
hearing book, and if you wish it to be, we shall certainly
arrange for it to be done, but it is included in the Dossier
that was presented to you in Volume 4, No. 27. Japan will
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not track A/NZ in this exercise, but will limit itself to
the following observations. First, it is clear that the
ITLOS decision is not legally binding on this Tribunal. The
suggestion in the A/NZ Reply (para. 21), and I quote, that
"the tribunals provided for under Part XV of UNCLOS are part
of a single coherent system of dispute resolution under
UNCLOS" has no relevant legal content. In particular, it
cannot give the ITLOS decision any special standing.
Second, such authority as the ITLOS decision might
possess by virtue of its composition and the status of that
Tribunal is more than counter-balanced by the fact that the
proceedings were summary proceedings conducted under
considerable pressure of time. As can easily be seen,
Japan's arguments in the present phase of the case are much
more developed than they could have been in the ITLOS
proceedings. It is incorrect to state, as does the A/NZ
Reply (para. 4), that the reasoning of ITLOS "followed full
argument of the issues." It is only necessary to compare
the arguments on jurisdiction being presented to the present
Tribunal with those presented to ITLOS to appreciate that
the latter, by reason of the circumstances, were not a
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"full" argument. The observation by A/NZ that Japan in its
Memorial offers no new ground or argument for reaching any
different result is suggestive only of the possibility that
the copies of the Memorial used by A/NZ were missing many
pages.
Third, the provisional and limited scope of the
Order is apparent on its face. As recalled in paragraph 40
of the Order, the Tribunal needed only to satisfy itself
that prima facie the present Tribunal would have
jurisdiction. More to the point, the crucial paragraphs of
the Order, paragraphs 48 to 50, relating to the question of
jurisdiction are expressed in the form of conclusions and
without supporting reasoning. Although 12 members of ITLOS
appended separate opinions to the Order, only two of them
specifically considered the question of jurisdiction, and
neither of them did so in any material detail.
In Japan's submission, the present Tribunal should
approach the issues now before it uninfluenced by the fact
that ITLOS considered that prima facie jurisdiction existed.
I will now turn, Mr. President, to the general
heading, the relationship between CCSBT and UNCLOS.
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The chapter that next follows in the A/NZ Reply,
Chapter 2, is entitled "The jurisdictional requirements of
UNCLOS Part XV are satisfied." If I were to follow A/NZ by
attempting to deal with this item next, I should be entering
a path from which it would be difficult to extricate myself.
This is not because what A/NZ says is correct. It is not.
But because the whole of the chapter rests on the assumption
by A/NZ that UNCLOS is the instrument that governs the
relationships involved in the present dispute and that,
therefore, what is necessary is to show that the
jurisdictional requirements of UNCLOS Part XV are satisfied.
Japan denies this. It argues that this case can only
properly be viewed as one relating to the interpretation or
implementation of a treaty specifically dealing with SBT,
namely CCSBT. Thus, the core issue in the present
proceedings is that of determining whether CCSBT is in any
way overridden by UNCLOS. This is the subject of A/NZ's
next chapter, Chapter 3. The Tribunal will understand,
therefore, why it is logically essential for Japan first to
identify the relevant treaty and, only after that is done,
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to examine the content of the pertinent jurisdictional
provisions.
So I now turn to examine rather closely A/NZ's
Chapter 3, entitled "The Tribunal's jurisdiction under Part
XV is not excluded by the 1993 Convention."
The Tribunal will recall that the principal
argument in the Japanese Memorial is that, in respect of the
treatment of SBT, the relationship between the two sides is
governed by CCSBT and not by UNCLOS. Permit me to emphasize
the words "in respect of the treatment of SBT." It is
necessary to say this because A/NZ bases its case on the
following statement, and I quote, "Japan interprets the
fisheries provisions of UNCLOS out of existence and denies
that they have any existence." (Reply, para. 96) Japan does
nothing of the sort. It completely accepts the existence
and operation of the UNCLOS fisheries provisions in general.
However, Japan does not do so in relation to that species of
fish that has by agreement become the subject of separate
and special regulation. SBT are such a species, and CCSBT
is such an agreement. The substantive relationship between
the Parties is governed by CCSBT, and the relationship as
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far as the settlement of disputes relating to SBT is
accordingly governed by Article 16 of CCSBT.
We may now turn to the A/NZ response to Japan's
arguments that as regards SBT CCSBT was and remains the
relevant governing treaty.
So we begin with the characterization of the
dispute. A/NZ begins by examining the manner in which the
Parties have characterized the dispute. A/NZ's objective in
this respect has been to show that, and I quote, "throughout
the dispute, A/NZ invoked the parties' obligations under
UNCLOS and...customary international law as core elements
which must be addressed if this dispute is to be resolved."
(Reply, paras. 98-107)
The facts do not support this representation. The
diplomatic correspondence has been presented in some detail
in Japan's Memorial at paragraphs 60 to 76. In the A/NZ
Reply, the treatment of the correspondence is divided
between two locations: first, in support of their
contention that "A/NZ invoked UNCLOS in the course of the
dispute" (Reply, paras. 61-71); and, second, rather more
briefly, in the section headed "the characterization of the
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dispute in the diplomatic exchanges." (Reply, paras. 98-
107)
There is no doubt that at a certain point A/NZ
woke up to the desirability from their point of view of
introducing reliance upon UNCLOS and customary international
law. But for the purpose of characterizing the dispute as
an UNCLOS dispute, the views referred to by A/NZ came too
late. The first citation given by A/NZ of reference to
UNCLOS is the New Zealand note of 14 July 1998. (Japan
Memorial, Vol. II, Annex 13) The citation is to be found in
the A/NZ Reply at paragraph 62 where the following statement
is given in quotation marks, and I quote, "The Japanese
Government had failed to act consistently with its
responsibilities under international law to cooperate in the
conservation and management of SBT and to conserve marine
living resources." The Reply then adds the words, not in
quotation marks--let me stress not in quotation marks--"the
foundation for those responsibilities is UNCLOS."
Well, it hardly needs saying that the insertion in
the A/NZ Reply of March 2000 of the words "the foundation
for those responsibilities is UNCLOS" is no substitute for
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having failed to use them in the note of 14 July 1998. In
truth, there is nothing in that note to suggest that New
Zealand had in mind the possible role of UNCLOS. Indeed,
rather more to the point, the citation of the note in the
A/NZ Reply omits the words in the sixth paragraph of the New
Zealand note which clearly reveal the obligation that New
Zealand had in mind, "It is the view of the Government of
New Zealand that the decision by the Government of Japan to
proceed with the experimental fishing program was undertaken
unilaterally and contrary to the stated objective of CCSBT
and the decision-making process of the Commission."
However, A/NZ's silence regarding the possible
relevance of UNCLOS did not begin with the note of 14 July
1998 that I have just mentioned. It began actually at the
very outset of the dispute, as was pointed out in detail in
the Japanese Memorial. There, at paragraph 60 and
following, Japan took the pains to set out the full text of
the message 4-1/2 months earlier, dated 25 February 1998,
from the Australian Energy and Resource Minister (JM Annex
4), and that note began with the words, and I quote, "I am
writing to you to convey my deep concern about the recent
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developments in the Commission for the Conservation of SBT."
This note, the longest in the series of exchanges, contains
no reference at all to UNCLOS or customary international
law. That was the opening shot in the EFP dispute. It is
expressed exclusively in terms of CCSBT. It stands, if I
may put it this way, as a monolithic acknowledgment that the
emerging dispute was seen and approached by Australia
exclusively in CCSBT terms.
For your convenience, Mr. President, we have
inserted the text of that note in the hearing book at Tab C,
and I need not read it to you now.
The significance of this note in the present
context is immense. The character of the dispute must be
determined by the manner in which it was seen by A/NZ at the
beginning, not at the end of the exchanges. Japan does not
need to go so far as to suggest that A/NZ are estopped or
precluded from changing the position that they first
adopted, though such a submission could and, perhaps, for
good order's sake should be made. It is enough for Japan to
point out the original characterization of the dispute is
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the clearest indication of what the Parties themselves
really thought of this matter.
How does A/NZ's Reply deal with this point?
Answer, by simply disregarding it. For A/NZ, the
correspondence prior to 14 July 1998 does not exist. If the
Tribunal will look at the Reply, paragraph 61, it will see
the blunt assertion that, and I quote, "it can be seen from
the correspondence that A/NZ have invoked relevant
provisions of UNCLOS throughout." The same is repeated at
the end of paragraph 102. But the first note that A/NZ
cited is the New Zealand note of 14 July 1998 (Reply, para.
62), and as just stated, it contains not a word about
UNCLOS.
Nor is it any response for A/NZ to say, as they do
in their Reply at paragraph 99, that at that time A/NZ hoped
the difference between the Parties could be resolved
amicably through the operation of the Commission. They were
striving, they said, for cooperation, not litigation. And
indeed they were, for on anyone's reading of CCSBT,
cooperation, not litigation, was the only course open to
them. It is a total fiction for A/NZ to assert, as they do
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in the next paragraph, that, and I quote, "A/NZ have always
taken the view that UNCLOS provides the framework for the
conservation and management of SBT by the parties." How
could that have been the position when UNCLOS only entered
into force between them 26 months after CCSBT began
operating?
It is necessary now, Mr. President, to turn to
another central element in this case, the identification of
the objective relationship between UNCLOS and CCSBT. For
Japan, the position is simple. This is a case about the
treatment of SBT. There exists a treaty, CCSBT, which is at
Tab B of the hearing book, comprehensively dealing with the
subject, particularly through the establishment and
operation of the Commission. It reflects the recognition by
the Parties that it is essential that they cooperate to
ensure the conservation and optimum utilization of SBT. The
details of CCSBT are set out in the Japanese Memorial,
paragraphs 29 to 36. The conclusion is there reached that
upon a close comparison, there is, and I quote, "no aspect
of the cited articles of UNCLOS that is not covered by the
terms of the CCSBT." (para. 36)
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When A/NZ turned to its own sub-heading, "the 1993
Convention does not 'cover' UNCLOS conservation
obligations," (paras. 109 and following) it quotes the
Japanese conclusion just mentioned and continues as follows,
and I quote again, "But in fact Japan provides no such close
comparison, perhaps because even a brief comparison
demonstrates that UNCLOS contains much more by way of
explicit and detailed obligations on the substance of the
conservation and management of SBT than does the 1993
Convention."
The insufficiency, the total insufficiency of this
A/NZ comment can best be demonstrated by looking at the
relevant UNCLOS articles in more detail, but before doing
so, there are two incidental points which I just want to
recall briefly.
The first, as I have already stated it, is that
CCSBT was operative for 26 months before UNCLOS entered into
force. So, for 26 months, CCSBT Parties found that its
terms provided a sufficient framework within which to deal
with all SBT problems and for a further 3 months the parties
lacked the possibility of recourse to ITLOS. In effect,
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A/NZ must be arguing that the Parties to CCSBT became
Parties to UNCLOS, believing that the latter would add to,
modify, or even diminish their obligations under CCSBT.
This argument seems, to say the least, rather improbable.
The second incidental point, before proceeding to
examine each of the articles of UNCLOS invoked by A/NZ, is
about the use of the words "covers" or "covered" by Japan.
Japan uses those words to describe the substantive
relationship between the cited UNCLOS articles and the
relevant CCSBT provisions. When Japan contends that an
UNCLOS provision is "covered" by a CCSBT provision, Japan
means that all the content of the UNCLOS provisions in
relation to SBT is to be found in the more detailed CCSBT
text. This has the effect that the legal commitment of the
parties can only properly be identified in terms of CCSBT.
The more particular, the more developed provisions replace
the more general provisions, it is to the particular
provisions, the lex specialis, as it has been called, rather
than to the general provisions, the lex generalis, that one
must look. This is a straightforward matter of treaty
interpretation.
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This is what Japan means by the provisions of
UNCLOS being "covered" in relation to SBT by CCSBT. A/NZ
pretend to some difficulty with this word and seek to
diminish its significance by always placing it within
quotation marks, as if to suggest that Japan's usage of it
is not commonplace. Japan sticks by the word "covered."
When a provision in UNCLOS is covered by a provision in
CCSBT, the latter has the effect of displacing in relation
to SBT the legal function of the former.
So I now turn to compare the UNCLOS articles cited
by A/NZ with the relevant CCSBT articles.
It will be recalled that discussion of the
relationship of UNCLOS to CCSBT involves five articles of
UNCLOS, Articles 64 and Articles 116 to 119, and these have
been reproduced in the hearing book under Tab D. Japan says
that each of them is fully covered by CCSBT. All that those
UNCLOS articles seek to achieve in relation to the
conversation and management of SBT is fully achieved or
achievable by the terms and the institutional framework of
CCSBT.
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Let's start with Article 64. Article 64 deals
with highly migratory species. The first paragraph is the
one that matters. It contains only two sentences. Both of
them use identical operative verbs. The first sentence
calls upon the coastal states and the other states whose
nationals fish in the region for highly migratory species
listed in the Annex, which include SBT, to "cooperate
directly or through appropriate international organizations
with a view to ensuring conservation and promoting the
objective of optimum utilization of such species." The
second sentence is limited to regions for which no
appropriate organization exists. In respect of them, the
states concerned "shall cooperate to establish such an
organization and participate in its work." Nothing can be
plainer than the conclusion that by the mere fact of
establishing CCSBT the parties were cooperating directly and
establishing the appropriate international organization to
further the stated objectives.
CCSBT contains clear and compelling obligations to
cooperate to at least as full an extent as is called for by
Article 64 of UNCLOS. If there is a dispute about whether
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the parties are cooperating, it falls for consideration
under the terms of CCSBT, including its dispute resolution
provisions. It could not be, or is no longer, a matter for
UNCLOS.
So I then pass on to Article 116. In considering the
relationship of Article 116 to CCSBT, one must start from
its words.
And I start: "All States have the right for their
nationals to engage in fishing on the high seas subject to,
A, their treaty obligations; B, the rights and duties as
well as the interests of coastal states provided for, inter
alia, in Articles 63(2), and 64 and 67; and, C, the
provisions of this section."
The question here is what is there in Article 116
that A/NZ could invoke to supplement the operation of CCSBT?
The answer is, nothing. The reference to "treaty
obligations" in subparagraph (a) adds nothing because the
only relevant treaty is CCSBT itself.
The reference in Article 116(b) to the "rights and
duties as well as the interests of coastal states" adds
nothing because these are precisely identified as elements
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relevant to the consideration which CCSBT Commission must
give to the making of allocations amongst the Parties.
Thus, the Commission is required in CCSBT Article 8,
paragraph 4(c), to consider "the interests of the Parties
through whose exclusive economic or fishery zones SBT
migrate." And CCSBT will be found at Tab B, and this item
at page 359. And under Article 8(4)(d), the Commission is
directed to consider "the interests of Parties whose vessels
engage in fishing for SBT, including those which have
historically engaged in such fishing and those which have
SBT fisheries under development."
The references in UNCLOS Article 116(b) to the
provisions of Article 63(2), and 64 and 67 make no
difference. A/NZ makes no reference to Articles 63(2) and
67. But they do refer to Article 64 and claim that the
obligations in Article 64 are not covered by CCSBT. It is
unnecessary to repeat the reasons I have just given for
rejecting A/NZ's argument on that article.
So I turn now to Article 117, which is also at Tab
D. When we turn to this article, our task is to assess
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whether Article 117 gives A/NZ rights that go beyond those
conferred upon them by CCSBT.
Both sides are agreed that Article 117 places upon
all States the duty to take or to cooperate with other
States in taking such measures by their respective nationals
as may be necessary for the conservation of the living
resources of the high seas. The question is: to what
extent, in relation to SBT, does this Article accord to A/NZ
greater rights than does CCSBT? In Japan's submission, the
scope of CCSBT, especially Article 5(1), places the Parties
under obligations which are at least as great as those in
UNCLOS Article 117. It should be noted, in particular, that
the A/NZ Reply (para. 121) expresses the content of Article
117 in a rather misleading way. Twice in one paragraph,
A/NZ refers in an unqualified manner to "the duty to
cooperate established by Article 117." But that is not the
way that Article 117 describes the duty of the parties, as
we can see from the text before us. It is a duty to
cooperate in taking such measures "as may be necessary,"
emphasis on the word "necessary," for the conservation of
the living resources of the high seas. The expression "as
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may be necessary," effectively excludes the idea of an
absolute duty to cooperate. The duty to cooperate is
relative. And yet for the A/NZ case, the duty to cooperate
must be absolute.
Now, Article 5(1) of CCSBT provides that "Each
Party shall take all action necessary to ensure the
enforcement of this Convention and compliance with measures
which become binding under paragraph 7 of Article 8. This
paragraph, Article 8(7), provides," within CCSBT now,
comparing it with UNCLOS, this paragraph provides that "all
measures decided upon under paragraph 3 above shall be
binding on the Parties." Paragraph 3 provides as follows:
"For the conservation, management and optimum utilization of
SBT:
(a) The Commission shall decide upon a total
allowable catch and its allocation amongst the Parties,
unless the Commission decides upon other appropriate
measures on the basis of the report and recommendations of
the Scientific Committee referred to in paragraphs 2(c) and
(d) of Article 9; and
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(b) the Commission may, if necessary, decide upon
other additional measures."
The degree to which CCSBT is more specific than
Article 117 is self-evident and hardly needs restatement.
UNCLOS, Article 117, requires no more than the taking or the
cooperation in taking measures as may be necessary for the
conservation of living resources, leaving quite open the
manner in which what "may be necessary" can be determined.
CCSBT, Article 5(1) echoes this by requiring each Party to
take all action necessary for the enforcement of the
Convention and compliance with measures which become binding
under CCSBT Article 8(7). But in so doing, CCSBT goes
further than UNCLOS. It introduces the notion of binding
measures. And this, in its turn, carries one back to the
obligation of the Commission to decide upon a Total
Allowable Catch and its allocation among the Parties, or to
take other appropriate measures, and its power to decide if
necessary upon other additional measures. So it can be seen
that CCSBT is more detailed, more comprehensive than Article
117. And so we can turn to Article 118. The A/NZ case on
UNCLOS 118 can be dealt with relatively briefly, principally
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because the essential argument of A/NZ is itself rather
summary. The relevant paragraph of the A/NZ Reply states,
and I quote, "...the fact that Australia, Japan and New
Zealand established the Commission under the 1993 Convention
does not mean the obligation to cooperate imposed by Article
118 is spent."
At this point, the reader will ask himself, why
not? The only answer to this question is to be found in the
next two sentences of the A/NZ paragraph 124. I quote,
"Article 118 places a continuing obligation on Japan to
cooperate with A/NZ in the conservation and management of
the seriously depleted SBT stock. This obligation is not
covered by the 1993 convention generally or Article 8
specifically."
As can immediately be seen, those sentences state
a conclusion. They contain no reasons. Moreover, the first
of them is rather one-sided in its description of the role
of Article 118. The continuing obligation which it
establishes is not imposed on Japan alone, as A/NZ states,
but on all parties, including A/NZ.
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Moreover, to suggest that CCSBT does not reflect
and contain the continuing obligation established by UNCLOS
is to disregard the concluding paragraph of the preamble to
CCSBT: "Recognizing that it is essential that they
cooperate to ensure the conservation and optimum utilization
of SBT." How could the existence of a continuing commitment
to cooperation on the basis of the specific provisions that
follow be more clearly expressed?
And so I come to Article 119. The expression of
the A/NZ suggestion that it is not covered by CCSBT becomes,
here, even shorter and feebler. Once again, A/NZ limits
itself to the assertion of what it ought to prove, but it
provides no supporting reasoning.
The obligations laid down in Article 119 relate
only to the determination by States of the allowable catch
and establishment of other conservation measures for the
living resources in the high seas. States are directed (a)
to take measures designed on the best scientific evidence
available to maintain or restore populations of harvested
species at levels which can produce the maximum sustainable
yield. Certain relevant factors are then mentioned.
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The second direction, (b), is that States should
take into consideration the effect of the measures adopted
on species associated with or dependent upon harvested
species.
Article 119 also requires the exchange of
scientific information on a regular basis through competent
international organizations and that conservation measures
do not discriminate against the fishermen of any State.
Japan has stated in its Memorial that the terms of
UNCLOS Article 119 are covered by Articles 5, 8 and 9 of
CCSBT. And so they are. Article 5, paragraphs 2, 3 and 4,
all cover the exchange of information in more detail than
does Article 119. . The terms of reference of the Commission
and of the Scientific Committee set out in Articles 8 and 9
of CCSBT clearly embrace all of the requirements of Article
119(1) and (2). All that A/NZ can find to say in this
connection is that CCSBT, Articles 8 and 9, "do not exclude
or modify the continuing obligations imposed upon the three
countries by Article 119, let alone exhaust them."
This A/NZ reference to continuity adds nothing.
The continuing nature of the obligations under CCSBT is no
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less continuous than the nature of the obligations under
UNCLOS. The duration of obligations under CCSBT is
potentially just as long as those under UNCLOS. Neither
treaty contains a duration provision, so both are indefinite
in their duration. And the denunciation provisions in each
treaty are essentially the same. CCSBT Article 20 permits
withdrawal after 12 months' notice; UNCLOS Article 317
permits denunciation to take effect one year after notice is
given. Consequently, so far as the duration of the
obligation to cooperate is concerned, UNCLOS contains
nothing of greater prospective duration than does CCSBT.
The further A/NZ suggestion that CCSBT Articles 8
and 9 "do not exclude or modify" the UNCLOS obligations
simply misses the point. As Japan has repeatedly stated,
the function of CCSBT is not to "exclude or modify" the
substantive obligations of UNCLOS. The function of CCSBT is
to fulfill and implement UNCLOS by providing the necessary
institutional structure and substantive detail amplifying
the outlines laid down in UNCLOS.
One small point remains on Article 119. A/NZ, in
the last sentence of the relevant paragraph, says that "It
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may be noted that Articles 8 and 9 (that is, of CCSBT) do
not give effect to Article 119(3) which requires States to
ensure that conservation measures and their implementation
do not discriminate against the fishermen of any State."
Now, once again, A/NZ appears to have completely missed the
point. The only issue before this Tribunal is whether, as
between the three Parties to CCSBT, there is anything on
which A/NZ can rely to support a claim by them that, they
say, falls within UNCLOS and outside CCSBT. To this issue,
the question of discrimination against fishermen of other
States is quite irrelevant.
But even if it were relevant, then it is taken
care of by the instruction given to the Commission in CCSBT,
Article 8(4), to take into consideration, in deciding upon
allocations amongst the Parties, "(c) the interests of
Parties through whose exclusive economic or fishery zones
SBT migrate" and "(d) the interests of Parties whose vessels
engage in fishing for SBT, including those who have
historically engaged in such fishing and those which have
SBT fisheries under development," not to mention "(f) any
other factors which the Commission deems appropriate."
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Finally, it should just be noted that the A/NZ
Conclusion on this important section adds nothing to what
came before. Once again, it seeks to distort the problem by
using the words, in paragraph 128, "there is nothing in its
[CCSBT's] text which would indicate that it was intended to
supplant those obligations of UNCLOS." Of course, there is
nothing in CCSBT to indicate that it was intended to
"supplant" the UNCLOS obligations. Nothing in CCSBT
supplants UNCLOS Articles 64 and 116 to 119. They were not
even in force when CCSBT was concluded. But even if they
are relevant, they remain fully valid and operative for all
species except SBT. For SBT, those Articles are fulfilled
or implemented by CCSBT to such a degree that there is
nothing left in those Articles of UNCLOS that goes beyond
what is incorporated in CCSBT. “Supplants,” the word used by
A/NZ is a pejorative word suggestive of something wrong,
something that undermines a valid and relevant text. There
is no room for such a suggestion here. So far as SBT are
concerned, CCSBT fulfills, discharges and covers UNCLOS.
Now, that brings us, Mr. President and members of
the Tribunal, to the end of this discussion of the
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relationship of the substantive content of UNCLOS and CCSBT
as presented in Section (a) of Chapter 3 of the A/NZ Reply,
save for one thing. It is worthwhile approaching the
question from a different direction, by looking at the
Statement of Claim filed by Australia and New Zealand. We
want to check if there is anything in the concluding section
on "Relief Sought," paragraph 69, which though expressed by
A/NZ in terms of breaches of UNCLOS 64 and 116 to 119 could
not equally have been expressed in terms of CCSBT. In
carrying out this scrutiny, it need hardly be said that
Japan does not for a moment accept the validity of the
allegations of breaches of UNCLOS made by A/NZ.
Now, the "Relief Sought" is to be found in Tab I
of the hearing book, with the heading "Relief Sought by
A/NZ." This alleges that Japan has breached its obligations
under UNCLOS 64 and 116 to 119 "in relation to the
conservation and management of the SBT stock 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
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contrary to the obligation in Article 117 to take necessary
conservation measures for its nationals."
Now, allow me, please, to comment immediately on
this first assertion. It could equally effectively have
been expressed in terms of CCSBT by alleging that Japan had
failed to comply with Article 5(1) of CCSBT in that it had
not taken all action necessary to ensure the enforcement of
CCSBT and compliance with measures which became binding
under paragraph 7 of Article 8. Or, if that was not thought
to be enough because the Commission might not have been able
to agree on the necessary measures, A/NZ could have argued,
if the facts had so warranted, that Japan was in breach of
the basic obligation to cooperate which was reflected in the
totality of CCSBT and as is stated in the final paragraph of
the Preamble thereto. There would have been no need to
resort to UNCLOS. The same is true of the second allegation
of breach of UNCLOS, which is made by A/NZ: "(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."
As to this, it must first be noted in passing that "the
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previously agreed Commission national allocations" were
binding and operative only up to the year 1997. So that the
taking of tuna after 1997 was not regulated by Commission
decision. Those allocations, those earlier binding
allocations, ceased to be legally binding and the Parties
became free to take such quantities as they considered
reasonable. That freedom could only be curtailed by the
agreed adoption of further catch limits for subsequent
years. No such limits have been agreed. However, returning
to A/NZ's second allegation of a breach of UNCLOS, it is
sufficient to say that the allegation depends entirely upon
CCSBT. It could not be made if there were no CCSBT. If the
facts are proved, the breach is one of CCSBT. Thus, in this
respect, again, there is no role for UNCLOS.
When one comes to the third allegation, it is the
same story. Japan is charged with "taking unilateral action
contrary to the rights and interests of Australia as a
coastal State, as recognized in Article 116(b)" that is of
UNCLOS, "and allowing its nationals to catch additional SBT
in the course of experimental fishing in a way which
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discriminates against Australian fishermen contrary to
Article 119(3)."
Now, the observation may be made in passing that
Japanese conduct is not discrimination in any recognizable
sense of the term. It is, no doubt, unilateral action, but
it is not action which Japan claims the sole right to
pursue. Australia could join in the activity. And the fact
that Japan has done it on its own does not discriminate
against Australia.
But that is not the immediate point. The
important point is that the reference to "additional SBT"
necessarily implies that there is some established limit to
the permissible catching of SBT. Where is that limit to be
found? The answer can only be in the limits set within the
framework of CCSBT. Under Article 8(3)(a) of CCSBT, the
Commission decides on the total allowable catch and its
allocation among the Parties. Its decision is binding on
the Parties. UNCLOS does not fix limits. It only lays down
objectives. The detail is to be found in CCSBT system. The
complaint is founded in CCSBT and CCSBT alone.
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So let us move to the fourth complaint: "(d)
failing in good faith to cooperate with Australia with a
view to ensuring the conservation of SBT, as required by
Article 64 of UNCLOS." Here, again, the position cannot be
considered without reference to CCSBT. It is overwhelmingly
evident that the obligation to cooperate has been fully
expressed and implemented by CCSBT. The fact that the
allegation refers to the duty to cooperate "as required by
Article 64 of UNCLOS" does not mean that the alleged breach
is a violation of UNCLOS, when the UNCLOS duty has, to all
intents and purposes, been taken over into CCSBT.
Finally, we come to the fifth complaint, namely,
that Japan is "Otherwise failing in its obligations under
UNCLOS in respect to the conservation and management of SBT,
having regard to the precautionary principle." Two comments
are called for:
The first is that all the obligations of
conservation and management under UNCLOS, in relation to
SBT, are subsumed and implemented in specific terms in
CCSBT. Second, the introduction of the reference to the
precautionary principle adds no strength to the argument
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that this is an UNCLOS case. To the extent that the
precautionary principle may be relevant at all, it is as
much relevant to CCSBT as to UNCLOS. In any event, Japan
makes no admission in regard to the relevance and operation
of the precautionary principle, which can only be a matter
for the merits, should that stage ever be reached.
So, where does all that bring us on the central
question of the relationship of UNCLOS and CCSBT? In
Japan's submission, this extended review demonstrates
conclusively that CCSBT covers all substantive matters that
have been brought into contention by A/NZ. The Articles of
CCSBT more than cover the Articles of UNCLOS that have been
invoked by A/NZ. There is no penumbra of obligation under
UNCLOS that extends beyond the circle of commitment
established by CCSBT. That is demonstrated by the detailed
examination of UNCLOS Articles 64 and 116 to 119 that I have
just carried out. It is confirmed further by the scrutiny
of the breaches of Articles 64 and 116 to 119 set out in
A/NZ's requests for relief. In short, in relation to SBT,
the terms of UNCLOS are entirely eclipsed by CCSBT.
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And so, Mr. President and members of the Tribunal,
I turn to the next main heading, "The Relationship of the
Dispute Settlement Process of UNCLOS and CCSBT." The focal
point of the dispute between the Parties as to whether their
relationship in respect of SBT is governed by UNCLOS or
CCSBT is the procedure for dispute settlement in each
convention. UNCLOS Part XV is applicable only to disputes
concerning the interpretation or application of that
Convention. If the dispute does not concern the
interpretation or application of that Convention, then
obviously Part XV does not apply and the present Tribunal
does not have jurisdiction. If, as Japan contends, the
dispute concerns CCSBT, then Article 16 of CCSBT applies
and, again, this Tribunal does not have jurisdiction.
The problem is in large part resolved by the
considerations that have just been examined in the preceding
section of this argument. Once it is shown that the
treatment of SBT is regulated by CCSBT, to the exclusion of
UNCLOS, then it follows that only CCSBT Article 16 can apply
to dispute settlement.
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Now, A/NZ make a number of assertions that are
evidently intended to throw doubt on this conclusion. And I
will take then one by one.
First, they claim, and I quote, "that A/NZ
accepted Article 16 in its present form as part of Japan's
price for having the 1993 Convention at all." (Reply, para.
139) There is not a shred of evidence to support this
suggestion. And indeed, it is quite without foundation.
The position is clearly set out in Japan's Memorial,
paragraphs 37 to 48, where the evolution of Article 16 is
described. But even if it were true, the decision to accept
Article 16 and to enter into CCSBT was made freely by A/NZ,
who cannot walk away from their commitment simply because
they are unhappy with the process of negotiation.
Second observation. The Reply also contends, in
the same paragraph that "there was at no stage any
suggestion that the 1993 Convention...would have or was
intended to have the effect of derogating from the
comprehensive and binding procedures of Part XV of UNCLOS in
relation to UNCLOS obligations. Nor would A/NZ have
entertained any such suggestion had it been made." Of
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course there was no suggestion that CCSBT would have had the
effect of derogating from UNCLOS in relation to UNCLOS
obligations. That was because any such suggestion would
have been quite irrelevant. The function of CCSBT was to
develop the substance of UNCLOS provisions in respect of the
conservation and management of SBT. Once CCSBT would be in
place, any disputes arising in relation to SBT would have
been disputes under CCSBT, not under UNCLOS. The truth of
that position is demonstrated convincingly by the fact that
CCSBT operated for 26 months before UNCLOS became effective
between the parties. But the truth is no less so, even if
CCSBT is regarded as a treaty later in time than UNCLOS.
CCSBT was clearly intended to be the governing instrument,
and a discussion of the application of UNCLOS Part XV has
nothing to do with settlement of disputes under CCSBT.
Third point. At this stage (Reply, para. 141 and
following) A/NZ introduced a different and alternative
argument. This is to the effect that CCSBT, "does not and
cannot exclude substantive UNCLOS obligations." A/NZ
contend that the relationship of UNCLOS to other treaties is
controlled by UNCLOS Article 311.
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It will be necessary to read the whole of Article
311, but I shall comment on it as I go along. And the
Tribunal will find that as the last item in Tab D in the
page immediately preceding Tab E.
Article 311 is entitled "Relation to other
conventions and international agreements."
Paragraph "1. This Convention shall prevail, as
between States Parties, over the Geneva Conventions on the
Law of the Sea of 29 April 1958." Clearly this paragraph
has nothing to do with the case.
So we go to the second paragraph, which reads:
"This Convention shall not alter the rights and obligations
of States Parties which arise from other agreement
compatible with this Convention and which do not affect the
enjoyment by other States Parties of their rights or the
performance of their obligations under this Convention."
This is an important limitation upon the effect of UNCLOS.
It provides that UNCLOS shall not alter the position arising
from other agreements compatible with it. CCSBT, in Japan's
contention, is fully compatible with UNCLOS. For one thing,
it was made before UNCLOS entered into force. For another,
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there is no substantive incompatibility between CCSBT and
UNCLOS. Moreover, nothing in CCSBT affects the enjoyment by
other parties to UNCLOS of their rights or the performance
of their obligations under UNCLOS. CCSBT affects only Japan
and A/NZ.
Now, the third paragraph is a bit longer. "Two or
more States may conclude agreements modifying or suspending
the operation of provisions of this Convention, applicable
solely to relations between them, provided" (and I insert,
one) "that such agreements do not relate to a provision
derogation from which is incompatible with the effective
execution of the object and purpose of this Convention, and
provided further" (and I insert the word, two) "further that
such agreements shall not affect the application of the
basic principles embodied herein and that the provisions of
such agreements do not affect the enjoyment by other States
Parties of their rights or performance of their obligations
under this Convention." Now, Japan denies that CCSBT is an
agreement modifying, suspending or derogating from the
operation of these provisions of UNCLOS. CCSBT is an
agreement implementing the then non-operative UNCLOS in
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accordance with its terms. And this is so, regardless of
whether CCSBT is regarded as a treaty prior to UNCLOS or as
one subsequent to it.
In any event, there is nothing in CCSBT which
relates to a provision derogation from which is incompatible
with the effective execution of the object and purposes of
UNCLOS. A/NZ do not seem to have pointed to any such
provision. Equally, there is nothing in CCSBT which affects
the application of the basic principles embodied in UNCLOS.
Likewise, the provisions of CCSBT do not affect the
enjoyment by States not Parties to it of their rights or the
performance of their obligations under UNCLOS.
The A/NZ contention to the contrary (Reply, para.
167) is incorrect. It argues, first, that CCSBT regulates a
resource in which other states have an interest, and in the
conservation of which there is a general public interest.
But the other States that have an identifiable interest in
SBT are the non-CCSBT states that are fishing for the
species. It is self evident that CCSBT does not affect
their enjoyment of their rights under UNCLOS as is shown,
not only by their continued fishing for SBT, but also by the
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absence of any protest by them against CCSBT. Indeed, CCSBT
clearly operates to the advantage of the non-party states
since without CCSBT the stocks of SBT would be even further
reduced by the uncontrolled fishing activities of A/NZ and
Japan.
As to the general public interest, it is again
clear that it must benefit from a fishery that is regulated
rather than one that is unregulated.
A/NZ's second argument is equally unsound. It is
this, and I quote, "If the 1993 Convention did purport to
modify relevant UNCLOS obligations as between the parties,
it would affect provisions 'derogation from which is
incompatible with the effective execution of the object and
purpose of UNCLOS." Not an iota of reasoning is advanced
to support a proposition which is, in the circumstances,
inherently unsustainable. How can it be assumed for a
moment that an agreement designed to implement the emergent
UNCLOS and further the performance of its obligations would
adversely affect provisions of UNCLOS from which derogation
would be incompatible with effective execution of its object
and purposes.
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So I turn now to paragraph 4 of Article 311. It
reads as follows: "States Parties intending to conclude an
agreement referred to in paragraph 3 shall notify the other
States Parties through the depositary of this Convention of
their intention to conclude the agreement and of the
modification or suspension for which it provides." It is
not relevant to the present situation since it applies only
to agreements covered by paragraph 3, which, as already
stated, applies only to agreements modifying or suspending
the operation of UNCLOS, which CCSBT does not.
And so we come to paragraph 5 of Article 311.
This reads: "This article does not affect international
agreements expressly permitted or preserved by other
articles of this Convention." It is directly pertinent. It
expressly excludes from the scope of Article 311
"international agreements expressly permitted or preserved
by other articles" of UNCLOS. Japan contends that CCSBT
falls precisely into this category and has said so in its
Memorial. (para. 128)
A/NZ's response to this point is far from
convincing. It says (Reply, para. 45)--and I quote--"That
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it can hardly be the case that an organization is" expressly
permitted "by Article 64 if its constitution allows the
whole process of cooperation and management to be stymied by
the unaccountable decision of a single party."
Japan finds it impossible to comprehend how A/NZ
can in law raise this point. Their allegation is, in
effect, that the terms of CCSBT are not permitted by UNCLOS,
and are therefore a violation of UNCLOS. If there is any
element of illegality in CCSBT, by reason of its alleged
non-compliance with UNCLOS, the responsibility for that
illegality rests even more upon A/NZ than upon Japan. After
all, there were two of A/NZ and only one of Japan. If the
charge is that "the constitution allows the whole process of
cooperation and management to be stymied by the
unaccountable decision of a single party", there is no basis
for saying that that single party can only or must
necessarily be Japan. What is open to Japan is equally open
to A/NZ, jointly or separately. So any allegation by them
of some pretended conflict between CCSBT and UNCLOS is
simply not open to them, and is certainly not opposable by
them to Japan. All three States are in the same boat. What
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that means, in short, is that there is no basis on which, by
reference to Article 311 of UNCLOS, A/NZ can exclude the
legitimacy of any provision in CCSBT, including in
particular, Article 16.
While I am referring to paragraph 145 of the A/NZ
Reply, I should not fail to point out that it contains
another pertinent distortion of the content and effect of
UNCLOS Article 64. A/NZ says, and I quote: "Far from
expressly permitting international agreement, Article 64
does not refer to any international agreement as such.
Rather, it refers to "appropriate international
organizations, and only for the purposes of implementing the
obligation of cooperation."" It is strange that the same
Parties that have placed allegations of non-compliance with
Article 64 in the forefront of their complaint against
Japan, should now seek to limit the effect of that article
to the establishment of international organizations, in
which respect it has of course been fully implemented by the
creation of the Commission, and should so disingenuously
disregard the primary obligation to cooperate directly, an
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obligation that can only be fulfilled by agreement between
the States concerned.
I return to Article 311. Paragraph 6 relates to
the common heritage of mankind and has no relevance here.
So much, then, for Article 311. There is nothing
in it that limits the efficacy of CCSBT, either in its
substantive provisions or in its dispute settlement
provisions.
So I turn next to the fourth point, the next A/NZ
contention that CCSBT Article 16 does not and cannot exclude
recourse to Part XV procedures (Reply, paras. 149-156) "if
the dispute is also one concerning the interpretation or
application of UNCLOS." (Reply, paras. 149-150) A/NZ
purports in this regard to be responding to an argument
advanced by Japan. This is not correct. Japan has never put
forward such an argument. This is because Japan's whole
approach to the relationship of CCSBT and UNCLOS excludes
the possibility that a dispute under CCSBT could also be a
dispute concerning the interpretation or application of
UNCLOS. Such is the nature and content of CCSBT that, as
regards SBT, it implements in specific terms the more
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general provisions of UNCLOS that might otherwise be
relevant. A/NZ press their argument to an extreme by
asserting that Japan's conclusion is said to follow from the
mere existence of the 1993 Convention, including Article 16.
"Thus"--and I quote--"it would follow whether or not the
disputed conduct was consistent with the 1993 Convention.
Just by virtue of being a party to the 1993 Convention, in
effect a State would be immunized from scrutiny for conduct
violative of both treaties."
This approach is quite misleading. Assume for the
purpose of the argument that there were some Japanese
conduct which violated CCSBT. First, we must stress that
such conduct would not also be a breach of UNCLOS because
the content of UNCLOS has in respect of SBT been replaced by
CCSBT. No doubt, it is in theory possible that a given act
may violate more than one treaty. But on the facts on the
present case, that is not possible. In respect of SBT the
relevant part of UNCLOS has been discharged and satisfied.
Its content has been absorbed into and covered by CCSBT so
there can be no proceedings under UNCLOS. Such a situation
is not an immunization from scrutiny under UNCLOS. It is a
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situation in which scrutiny is irrelevant because UNCLOS has
become irrelevant. A breach of CCSBT is a breach of CCSBT
alone.
As regards the suggestion that such conduct would
be, quote, "immunized from scrutiny" under CCSBT because
Article 16 would contain the only relevant dispute
settlement system, that too is misconceived. Such conduct
could be scrutinized because Article 16, para. 1, lays upon
the Parties a clear obligation to consult amongst
themselves. The wording is mandatory: they "shall consult
amongst themselves." Moreover, the obligation to consult is
not an abstract requirement. The parties are not called on
to consult generally. They are required to consult
specifically about the dispute that has arisen. More than
that, the object of the consultation is expressly stated:
"with a view to having the dispute resolved by negotiation,
inquiry, mediation, conciliation, arbitration, judicial
settlement or other peaceful means of their own choice."
So there is not merely a real prospect of
scrutiny, there is a required prospect of scrutiny as the
parties to a dispute consider the appropriate means of
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settling it. Also, it must not be overlooked that Article
16, para. 2, while referring to the possibility of recourse
to the ICJ or arbitration if all the parties to the dispute
so consent, expressly adds that "failure to reach agreement"
on such a reference "shall not absolve the parties to the
dispute from the responsibility of continuing to seek to
resolve it by any of the various peaceful means referring to
in the first paragraph of the Article." Thus, there always
exists the possibility that the parties might agree to
judicial settlement or arbitration under Article 16. After
all, arbitration was offered by Japan in the present case,
but was declined by A/NZ. Lastly, and I might emphasize
this, if the parties failed to agree on judicial settlement
or arbitration, the resulting situation would not have been
one that was unforeseen by them, nor was it forced upon
them, nor is it otherwise unusual. As Japan has shown in
Annex 47 of its Memorial, non-watertight, non-compulsory
dispute settlement provisions are a common feature of
resource regulation treaties. And I shall be returning
later to discuss the significance of this huge body of State
practice in some detail.
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So I come next to the fifth point. A/NZ's next
argument in favor of the operation of UNCLOS involves
reference to the terms of Article 282 of UNCLOS, which you
will find under Tab D of your hearing book. This provides
as follows. Its heading is "Obligations under general,
regional or bilateral arrangements." And as the Tribunal
will see, it forms part of Section 1 of Part XV of UNCLOS.
"If the State Parties which are parties to a
dispute concerning the interpretation or application of this
Convention have agreed, through a general, regional or
bilateral agreement or otherwise, that such dispute shall,
at the request of any party to the dispute, be submitted to
a procedure that entails a binding decision, that procedure
shall apply in lieu of the procedure provided for in this
Part, unless the parties to the dispute otherwise agree."
A/NZ's argument runs as follows: "Assume...that
Article 16 were to be interpreted as an agreement by which
A/NZ have renounced in advance any resort to Part XV in
relation to SBT. It is quite clear that such an
interpretation would be incompatible with Article 282,
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since, as already demonstrated, Article 16 does not amount
to a procedure entailing a binding decision."
Once again, the argument is unsound because it
begins from the same false starting point, namely, the
pretense that the dispute is one relating to the
interpretation or application of UNCLOS. If, as Japan
contends, the dispute is one under CCSBT, then the pre-
condition for the operation of Article 282 is not met. If
there is no dispute under UNCLOS, there is no role for
Article 282.
A/NZ then seeks to disable the present Tribunal
from reaching this conclusion by saying--and I quote again--
"It is simply not open to a Tribunal exercising jurisdiction
under Part XV to apply another treaty provision inconsistent
with UNCLOS." This requires Japan to recall the nature and
limits of the jurisdiction now being exercised by this
Tribunal. The Tribunal is only exercising jurisdiction now
for the limited purpose of determining whether it has
jurisdiction to deal with a substantive matter under UNCLOS.
In approaching that task, the Tribunal cannot start from the
position that it is bound to apply UNCLOS when the facts
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lead inexorably, as they do here, to the conclusion that the
relevant substantive treaty is CCSBT, not UNCLOS.
I come to the sixth point. Lastly, in examining
the relationship one to another of the dispute settlement
process of UNCLOS and CCSBT, it is necessary to mention a
broader assertion that is made by A/NZ. They contend that
the compulsory procedures entailing binding decisions laid
down in Section 2 of Part XV were laid down in a way which
does not permit evasion. (para. 28) They repeat the point
on the next page, where they state that "UNCLOS seeks to
establish an overarching, mandatory regime for regulation
of, and resolution of, disputes concerning the Law of the
Sea, which itself includes conservation and management of
fisheries." (para. 30) And yet again (para. 141), A/NZ
assert that UNCLOS, in calling on its parties to implement
many of its obligations by cooperative means, "does so
without in any way derogating from its own dispute
settlement mechanism in relation to obligations arising
under UNCLOS itself or covered by its provisions." Oops, I
thought "covered" was one of our words, not one of theirs.
They continue, and I quote: "And it [UNCLOS] is careful to
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prevent some of the parties to UNCLOS from derogating from
their obligations other than through means which are at
least as effective in giving rise to binding decisions. All
this is fully consistent with the character of UNCLOS 'a
legal order for the seas and oceans.'" I shall have
occasion later when I come to Annex 47, to remind the
Tribunal of the breadth of these accessions by A/NZ.
For the moment all I need to say is that all of
these statements sound rather grand, but they are a long way
from reflecting the true content and purpose of the UNCLOS
provisions on dispute settlement. The underlying philosophy
of UNCLOS Part XV is that all disputes relating to the
interpretation or application of the Convention should be
subject to compulsory settlement by the means set out in
Section 2 of Part XV, except where there are specific
exclusions with UNCLOS, or where the relevant parties have
made a special arrangement indicative of their wish not to
apply Part XV procedures. As I will presently recall, such
indications have been given in scores of cases.
The freedom of the parties to UNCLOS, to vary the
dispute settlement provisions, rests upon the terms of
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UNCLOS Article 280. I quote: "Nothing in this Part"--i.e.
Part XV--"impairs the right of any States Parties to agree
at any time to settle a dispute between them concerning the
interpretation or application of this Convention by any
peaceful means of their own choice." The authoritative
University of Virginia Commentary on the Convention
observes, and I quote: "Article 280 is intended to make it
as clear as possible that the parties to the dispute are
complete masters of the procedure to be used to settle it.
They can "at any time" agree to depart from the provisions
of Part XV and agree to use instead "any peaceful means of
their own choice." (para. 280.1)"
This view of Article 280 is confirmed by the next
relevant provision of Part XV, Article 281. And I quote
again: "If the States Parties which are parties to a
dispute concerning the interpretation or application of this
Convention [which Japan says the present dispute is not]
have agreed to seek a settlement of the dispute by peaceful
means as their own choice"--a condition I may add, which
obviously presupposes their freedom to do so--"the
procedures provided for in this part apply only where no
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settlement has been reached by recourse to such means and
the agreement between the parties does not exclude any
further procedure." If for the purpose of argument, and
contrary to Japan's position, one were to assume that a
dispute under CCSBT could also be one under UNCLOS, then
Article 16 fits precisely into Article 281, para. 1. The
Parties to CCSBT have agreed to such settlement of the
dispute by a peaceful means of their own choice, namely,
whatever method indicated in CCSBT Article 16 they agree to
pursue; and the agreement in Article 16 excludes any further
procedure. They have made it clear in Article 16(2) that no
dispute shall be referred to the ICJ or arbitration without
their consent.
Now, Mr. President, if you would just glance for a
moment at the outline of my argument, you would see that I
have now reached the point on page 2 where I have concluded
the heading Roman numeral III and have reached the heading
Roman IV, "The question of lex specialis and lex posterior."
I note that it is 1:02 in time, but I recall that you have
taken eight minutes of introduction plus 15 minutes of
coffee, or perhaps more, out of our time, so that we are
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entitled to 23 minutes more. And I place myself in your
hands, Mr. President. You may wish me to continue now, or
you may wish to add 23 minutes to this afternoon's
proceedings. I'm in your hands entirely.
PRESIDENT SCHWEBEL: Thank you, Sir Elihu. I
suggest that we adjourn now and take the additional time
this afternoon, if that's agreeable.
SIR ELIHU LAUTERPACHT: On my understanding then,
we would start at 4 o'clock and continue till nearly 7
o'clock.
PRESIDENT SCHWEBEL: Right.
SIR ELIHU LAUTERPACHT: Plus a 15-minute break.
PRESIDENT SCHWEBEL: We will have a 15-minute
break, yes.
Good. Well, then I wish you all a good lunch and
period of rest and reflection, and look forward to seeing
you at 4 o'clock.
SIR ELIHU LAUTERPACHT: Thank you very much.
[Whereupon, at 1:04 p.m., a luncheon recess was
taken, scheduled to reconvene at 4:00 p.m., this same day.]
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A F T E R N O O N S E S S I O N
[3:58 p.m.]
PRESIDENT SCHWEBEL: Good afternoon, ladies and
gentlemen. I think, if I may say so, the gang is all here.
We all seem to be seated, and so I will call upon Sir Elihu
to resume.
SIR ELIHU LAUTERPACHT: Thank you, Mr. President.
At the end of this morning, there remained two
sections of my outline to be dealt with. One is headed "The
Question of Lex Specialis and Lex Posterior," and the other
is headed "Current State Practices Disregarded by A/NZ."
I turn to the first of these. I turn to A/NZ's
attempt to diminish, indeed exclude, the role of two legal
concepts, historically expressed in Latin, but quite
capable, in view of A/NZ's evident concern about the use of
that language (See Reply, para. 152), of being expressed in
English: lex specialis derogat legi generali, "a special or
specific law overrides a general law" or "a general law
gives way to a specific law"; lex posterior derogat legi
priori, "the earlier gives way to the later."
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Lest there be any danger of the role of these two
principles being misunderstood, I should make it plain that
their function is to support the interpretative process that
the Tribunal must perform. The Tribunal's task is to look
at two relevant treaties, UNCLOS and CCSBT, and to interpret
them together. If UNCLOS is correctly understood, its
provisions in relation to SBT are functus officio because
they have been implemented by and subsumed into CCSBT. So,
because of this, as between the parties to CCSBT, there are
no longer any rights or obligations under UNCLOS in relation
to SBT and, therefore, there can be no dispute under UNCLOS
over which this Tribunal has jurisdiction except the
preliminary question of whether the Tribunal has
jurisdiction over the merits. In other words, it is
sufficient to look at the two treaties, UNCLOS and CCSBT,
side by side, in order to be able to conclude that, in
relation to SBT, the existence of the latter, CCSBT,
excludes the operation of the former, UNCLOS. In short, the
question is simply one of interpreting two treaties in order
to see which to apply.
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However, it is helpful in approaching this task of
interpretation to recall the two principles of lex specialis
and lex posterior which courts have found helpful in the
past in interpreting two coexistent texts or two coexistent
passages in one text. It is the relevance and operation of
these two principles that A/NZ seek to challenge.
The place of these two principles in international
law can hardly be gainsaid. The authorities of the highest
eminence have been set out in Japan's Memorial at paragraphs
121 to 126. They have not been questioned by A/NZ, and they
do not need to be repeated now.
Instead, A/NZ attack their applicability on two
grounds. The first is that resort to them is only required
if there is an inconsistency between two treaties. The
second is that even if there were inconsistency, there is no
need to have recourse to the two principles when the
relations between the two treaties concerned are expressly
dealt with in the dominant text.
Both objections suffer from a basic defect. They
assume the existence of an inconsistency or conflict between
UNCLOS and CCSBT. In truth, should it need saying again,
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there is no such inconsistency or conflict. Japan has never
alleged that there is. The situation is simply one in which
CCSBT implements UNCLOS or enlarges the terms of UNCLOS or
densifies those terms. The two agreements do not oppose one
another. The relevant provisions of UNCLOS are simply
enfolded into CCSBT. There is no further point in resorting
to UNCLOS as the source of current obligation in respect of
SBT because that would be to approach the subject in an out-
of-date and incomplete manner. The up-to-date,
comprehensive, and controlling text is CCSBT.
For that reason, the discussion of conflicts
between treaties to which the academic contributions of the
late Dr. Jenks and Dr. Karl are related have nothing to do
with the question now before this Tribunal.
The correct view of the matter is that the lex
specialis principle is not concerned with the repeal or
amendment of treaty provisions. It is concerned with the
approach that must be adopted by a tribunal to the
determination of the rights and duties of the parties. Its
effect is that where the parties are bound in relation to a
particular matter by an agreement in general terms, and have
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also concluded another agreement that regulates some aspect
of that matter in detail, a tribunal should apply the
details that the parties have agreed. Those details
represent the definitive statement of the rights and duties
of the parties.
The authorities make this clear. In the De Jong
case, cited in Japan's Memorial, the European Court says,
and I quote, that "there is no need to examine the case
under Article 13 in view of the conclusion reached under the
lex specialis." They said: "No need to examine the case,"
not that the lex specialis overrules the lex generalis, but
that the tribunal's task is to construe the lex specialis
and not to exclude the specific agreement of the parties by
relying upon the lex generalis.
That is why, for instance, Oppenheim refers (Japan
Memorial, para. 125) to the role of the principle in
resolving "apparent" conflicts, a qualification unnecessary
if the principle were limited to true conflicts. It is why
McNair, Fitzmaurice and others do not even suggest that the
principle might be confined to cases of inconsistency.
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There are other instances that may be cited. For
example, the World Trade Organization Appellate Body in the
Bananas case (WT/DS27/AB/R, 9 September 1997) found that
Article X:3(a) of the GATT 1994 and Article 1.3 of the
Licensing Agreement have identical coverage, and both
applied to the case before it. In so doing, it stated that
"the Panel, in our view, should have applied the Licensing
Agreement first, since this agreement deals specifically,
and in detail, with the administration of import licensing
procedures. If the Panel had done so, then there would have
been no need for it to address the alleged inconsistency
with Article X:3(a) of the GATT 1994," end of quotation.
Another suggestion advanced by A/NZ is that the
principle applies only in cases where the provisions are
found in the same treaty. This suggestion is clearly wrong.
For example, the International Court of Justice in its
Advisory Opinion on the Case Concerning the Legality of the
Threat of Use of Nuclear Weapons refers to the law
applicable to the conduct of hostilities in armed conflict
derived from one set of instruments as lex specialis in
relation to the general right to life in the International
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Covenant of Civil and Political Rights, a separate
instrument.
The further suggestion that UNCLOS might be the
lex specialis because it is "detailed and specific" and Part
XV is a comprehensive system of dispute settlement rather
than the mere "menu of options," as they put it, that is
CCSBT Article 16, is simply confused. The lex specialis
principle does not depend upon the number of articles or
words used in the respective instruments. It depends on
which instrument is the specialized implementation of the
broad principles set out in the other. Here, of course, it
is self-evident that CCSBT is a specific application of the
UNCLOS provisions on cooperation in the conservation and
management of high seas fish stocks. CCSBT is confined to a
single species, and to cooperation between three signatory
States.
A few words are required on A/NZ's use of the lex
posterior principle. I need not repeat again what I have
already said about Article 311 of UNCLOS, but it is
necessary to refer to the manner in which the Reply in
paragraph 159 seeks to distinguish, as they put it,
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"sharply" the relationship of CCSBT to UNCLOS from that of
"other examples of subsequent agreements, such as maritime
boundary delimitations." These, the latter, so A/NZ
suggest, "deal with a one-off issue between States, and in
most cases, record a situation which becomes, as it were, a
droit acquis. Once States have decided, in that subsequent
agreement, on the delimitation of a continental shelf or an
EEZ, there is simply no need to go back to the provisions of
UNCLOS." That is the A/NZ argument. To have been able to
say this, A/NZ must have been looking at a very narrow
sample of boundary delimitation agreements. As a few
minutes with the collection like the two volumes of Charney
and Alexander's International Maritime Boundaries will show,
there are many such agreements containing provisions dealing
with continuing obligations in respect of division of
resources. A good example is to be found in the cluster of
treaties between Australia and Indonesia, the most pertinent
of which is the 1989 Treaty on the Zone of Cooperation in an
area between the Indonesian Province of East Timor and
Northern Australia, the so-called "Timor Gap" Treaty.
(Charney and Alexander, Vol. II, at 1256) Declaring itself
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to be taking into account UNCLOS and especially Article 83
thereof, the Treaty lays down a long-term requirement for
the establishment of joint arrangements to permit the
exploration for and exploitation of petroleum resources in
the area. The Agreement contains in Article 30 a dispute
settlement provision in the now-familiar terms, and I quote,
"Any dispute arising between the Contracting States
concerning the interpretation or application of this Treaty
shall be resolved by consultation or negotiation between the
Contracting States." One may ask do the relevant provisions
of UNCLOS still apply here, and is UNCLOS Part XV to be
invoked to supplement Article 30? I hardly need say that,
in Japan's view, the answer is no.
So much, then, Mr. President and Members of the
Tribunal, for the lex specialis and the lex posterior
question.
I now want to turn to the current state practice
in this matter which has been totally disregarded by A/NZ.
I shall not attempt to summarize Japan's case, but I must
draw the Tribunal's attention to a most important omission
from the A/NZ Reply.
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In its Memorial, Japan included a section, Chapter
XII, B, accompanied by an Annex containing references to a
number of treaties dealing with subjects falling within the
range of matters covered by UNCLOS and concluded after the
signature of that Convention in 1982. (J.M.A. 47) The
purpose of that Section and its accompanying annex was to
demonstrate the wide acceptance by States of non-compulsory
dispute settlement provisions in treaties bearing on matters
that would otherwise be justiciable under UNCLOS, and the
conclusion drawn from this survey was that it would be
scarcely credible that the States parties to these
agreements would have included such provisions if they could
have had any inkling that those provisions were rendered
unnecessary or could have been overridden by UNCLOS Part XV.
Virtually, every State in the world has subscribed to at
least one agreement containing such provisions. Australia
has subscribed to at least a dozen, and New Zealand to no
less than eight.
When reference was made in the Japanese Memorial
to Annex 47, it was described as "still incomplete." I now
seek your leave to place before you a revised and extended
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form of Annex 47. You will find it in your hearing books at
Tab N, and I would invite you, respectfully, to have it
before you as I continue my argument. If I may suggest, it
would be easiest if you were actually to remove the Annex
from the binder because then you can turn the pages more
easily.
Now, I cannot pretend that this collection is a
complete one. To have made it more complete would have
required an effort quite out of proportion to the result
that might be achieved. There is quite enough in the Annex
to provide compelling support for Japan's argument. I
should be grateful if you would allow me to show you how the
Annex works.
The first page is the contents page. It shows the
method of presentation.
You will see Part A, Treaties without express
dispute settlement provisions. If the A/NZ Doctrine, if I
may call it that, were applied to any of these treaties,
they would become subject to compulsory dispute settlement
in a manner that they seemingly did not contemplate.
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Let us just take two examples. The first of them
is the International Convention for the Regulation of
Whaling. I have chosen it because it is an old convention,
operative long before UNCLOS entered into force. You will
find it at Item No. 1 in Part A. The Convention's purpose
is to establish a system of international regulation for
whale fisheries to ensure proper and effective conservation
and development of whale stocks. To this end, an
International Whaling Commission was established with the
power, amongst other things, to adopt regulations with
respect to the conservation and utilization of whale
resources by reference to species, seasons, locations, size
limits, maximum catch, types of gear and so on. The text of
the Convention itself is supplemented by a Schedule which
contains, amongst other things, details of permitted
locations and catch limits. The Schedule is periodically
amended. So far, there have been about 50 amendments.
Thus, the catching of whales is the subject of elaborate
regulation in respect of which disputes between the parties
could arise, particularly in relation to the implementation
of the catch limits established by the Commission.
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However, and this is the important point, the
Whaling Convention contains no dispute settlement provision.
If the A/NZ approach is correct, the substantive provisions
of UNCLOS relating to the conservation of marine resources
would not be excluded by the terms of the Whaling
Convention, and it would, therefore, be open to any party to
UNCLOS to bring proceedings against a whaling State under
UNCLOS Part XV alleging that some breach of the Whaling
Convention was also a breach of some provision of UNCLOS.
It is improbable that this possibility would have come to
the minds of the Convention parties when they became parties
to UNCLOS.
The second example is a convention made after the
conclusion of UNCLOS and, therefore, in full knowledge of
the UNCLOS provisions, even though they were not to enter
into force until some 6 years later. This is the Convention
for the Prohibition of Fishing with Long Driftnets in the
South Pacific Ocean. That is No. 10 in the Annex. It was
concluded at Wellington in 1989. It entered into force on
17 May 1991. This contains, as its title suggests, measures
to restrict drift-net fishing. I do not have a note of the
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Parties, but it is open to members of the South Pacific
Forum Fisheries Agency. New Zealand, as the depositary, is
presumably a party, and if Australia is not a party, it will
no doubt so inform the Tribunal. The Convention contains no
dispute settlement provisions, presumably reflecting the
belief and wish of the Parties that the consultations
contemplated in Article 7 should be sufficient to resolve
disputes. The Convention could have included a reference to
UNCLOS Part XV settlement, but it did not.
Now we may turn, Mr. President, to the Part B of
the Annex. This, for present purposes, is the most
significant part. It contains two sections, one for pre-
1982 agreements, the other for post-1982 agreements. We
have set out the post-1982 agreements first because they
must have been made with knowledge of UNCLOS Part XV. These
texts form numbers 13 to 78 of the Annex. The titles of
some of them may suggest that they have nothing to do with
the law of the sea, but my belief is that in every item,
there is a provision, albeit sometimes remote, which deals
with a topic covered by some article of UNCLOS.
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Now, here it may be convenient if we look at a few
examples, almost at random. May I invite you to turn to
Item 13, the Convention for the Protection and Development
of Marine Environment of the Wider Caribbean Region,
concluded in 1983. And if you will look at the right-hand
column under the heading "Relevant Provisions," you will see
the dispute settlement clause:
"In case of a dispute between contracting Parties
as to the interpretational application of this Convention or
its articles, they shall seek a settlement of the dispute
through negotiation or any other peaceful means of their own
choice. If the contracting Parties concerned cannot settle
their dispute through the means mentioned in the preceding
paragraph, the dispute shall, upon common agreement, except
as may be otherwise provided in any protocol to this
Convention, be submitted to arbitration. However, failure
to reach common agreement on submission to arbitration shall
not absolve the Parties from the responsibility of
continuing to seek to resolve it by the means referred to in
paragraph 1."
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It clearly excludes recourse to UNCLOS Part XV
procedures. If UNCLOS Part XV procedures did, in the manner
contemplated by A/NZ, automatically apply to this
Convention, there would have been no need for this
provision.
So then we look at Item 15, at the provisional
understanding regarding Deep Sea Bed Matters of 1984,
Article 10. "The Parties shall settle any dispute arising
from the interpretation or application of this Agreement by
appropriate means. The parties to this dispute shall
consider the possibility of recourse to binding arbitration,
and if they agree, shall have recourse to it." Again, this
provision excludes UNCLOS, by implication.
And, again, if the Parties had thought that UNCLOS
automatically applied, they need not have put this in unless
they wanted it to achieve the effect which it does; namely,
to exclude compulsory arbitral or judicial settling.
Let us look next at Item 17, "The United States
and the European Economic Community," the Agreement
concerning fisheries off the coasts of the United States.
Article 14, paragraph 2: "At the request of either Party,
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any dispute concerning the interpretation or application of
this Agreement shall be the subject of consultations between
the Parties. Again, by implication, UNCLOS is excluded.
Again, if the parties accepted the A/NZ doctrine, they need
not have put this in, unless they wanted to achieve the
exclusion of compulsory dispute settlement.
Let us look at Item 27. And just as I said at the
beginning, this is an enormous random selection of items.
And no doubt members of the Tribunal *will want to study the
whole Annex carefully for themselves and will see that the
ones I'm choosing are not special. They are just typical of
what is in here.
Item 27, "The Convention for the Protection of the
Natural Resources and Environment of the South Pacific
Region concluded at Noumea, in 1986, Article 26, rather
similar to ones we've read before: "In case of a dispute,
negotiation by peaceful means. If they cannot reach
agreement, they should seek good offices or jointly request
mediation by a third party. And if they cannot settle their
dispute by those means, the dispute shall, upon common
agreement, except as may be otherwise provided in any
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Article, be submitted to arbitration and so on." Again, the
exclusion of UNCLOS.
Let us turn to Item 29. This is an Agreement
between Australia and the Solomon Islands establishing
certain sea and seabed boundaries. This is interesting
because the Preamble actually refers to UNCLOS. The
Preamble says: "Basing themselves on the rules and
principles of relevant international law and taking into
account the United Nations Convention on the Law of the
Sea." And then Article 3 provides "any dispute between the
two governments arising out of the interpretation or
implementation of this Agreement shall be settled peacefully
by consultation or negotiation."
Well, clearly, the Parties could not have thought
that UNCLOS would have applied to this or that UNCLOS would
have prohibited this type of dispute settlement provision.
Let us go on to Item 33. This is the Basel
Convention on the Control of Trans-Boundary Movements of
Hazardous Wastes and Their Disposal, 1989, Article 20: "In
case of a dispute between parties as to the interpretation
or application, they shall seek a settlement through
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negotiation or any other peaceful means of their choice. If
they cannot settle a dispute through the means mentioned
above, the dispute, if the Parties to the dispute agree,
shall be submitted to the International Court or
arbitration."
We can go on to Item 34. Again, Australia and
Indonesia. I think this is the same one as I referred to
earlier, the 1989 Treaty on the Zone of Cooperation in the
Timor Gap area. So I needn't take you in detail through it.
Once again, there's an exclusion of compulsory settlement,
and this having regard to a provision in the Preamble which
expressly refers to UNCLOS. "Any dispute shall be resolved
by consultation or negotiation between the contracting
States."
So we can go on to Item 39. Cook Islands and
France, an Agreement on Maritime Limitation: "Basing
themselves on the rules and principles of international law,
as they are expressed in the UN Convention on the Law of the
Sea." And Article 4: "Any dispute arising between the
parties with respect to the interpretation or application of
this Agreement shall be resolved by peaceful means in
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accordance with international law." Again, no reflection of
any idea that UNCLOS would automatically apply or that a
provision of this kind would be contrary to UNCLOS.
Let us turn to Item 56, "The Palau Arrangement for
the Management of the Western Pacific Purse Seine Fisheries,
SUUA, in 1992." Again, the Preamble refers to UNCLOS, and
the provision is that "at the request of any Party,
consultations will be held with any other Party within 60
days of the receipt of a request. All other Parties will be
notified of such request for consultations."
And then Article 10(2), "Any dispute arising out
of the interpretation or implementation of this arrangement
between two or more Parties will be settled through peaceful
negotiations." Once more, no absorption of UNCLOS
automatically, no reflection of any concern that this might
conflict with UNCLOS.
Let's go to Item 63. This is the "Agreement to
Promote Compliance with International Conservation and
Management Measures by Fishing Vessels on the High Seas,"
concluded at Rome in 1993. Again, it starts from UNCLOS:
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"Recognizing that all States have the right to fish on the
high seas, as reflected in UNCLOS."
Article 9: "Any Party may seek consultations with
any other Party on any dispute with regard to the
interpretation or application of the provisions with a view
to a mutually satisfactory solution. In the event that the
dispute is not resolved through these consultations within a
reasonable period, the Parties in question shall consult
amongst themselves as soon as possible with a view to having
the dispute settled by negotiation," et cetera. "Any
dispute of this character not so resolved shall, with the
consent of all the Parties, be referred for settlement to
the International Court," et cetera. The same comment to be
made on this, as on the earlier ones. And this the more
significant because it is a major *multilateral treaty,
concluded, I believe, under the auspices of the FAO.
And finally, let us look at Item 74, Australia and
Indonesia, once again. Treaty between them establishing an
exclusive economic zone boundary and certain seabed
boundaries. Once more reference to UNCLOS and reference to
Article 74 and 83 relating to delimitation. Article 10:
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"Any dispute between the parties arising out of the
interpretation or implementation of this Treaty shall be
settled peacefully by consultation or negotiation." Same
comment. I need not repeat these comments the whole time.
And I could, I am sure, Mr. President and members
of the Tribunal, bore you even more if I were to continue
this recitation.
The text of many of the items in Annex 47 can be
found in a remarkable collection of treaties entitled, "The
Marine Mammal Commission Compendium of Selected Treaties,
International Agreements and Other Relevant Documents on
Marine resources, Wildlife and the Environment," compiled
under the auspices of the Marine Mammal Commission by
Richard Wallace. It consists of three volumes and a
supplement, and it totals some 4,500 pages of text. I
respectfully commend it to the consideration of the
Tribunal. Unfortunately, or perhaps fortunately, we have
been able to find only one copy of it, and that is in the
Library of the American Society of International Law. We
have tried to obtain further copies, but the U.S. Government
Printing Office has none at the moment. We will, of course,
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share this copy willingly with A/NZ, and we should be
grateful if they would then pass it on to you, Mr.
President, for consideration by yourself and the members of
the Tribunal. In due course, the volumes should be returned
to the American Society either directly or through Japan's
Washington lawyers, Messrs. Cleary, Gottlieb, Steen &
Hamilton.
In addition, we have prepared a collection of the
texts which are referred to in Annex 47. And they are
contained in four large loose-leaf volumes, which stand on
the table next to me and of which a copy should be available
to the Tribunal. We must apologize for having prepared only
one set for the Tribunal and one set for A/NZ, but
logistical problems have intervened. Also, we felt that
members coming from abroad might not wish to be burdened by
carrying home so large a collection. If, however, any
member of the Tribunal should wish to have a copy for
himself, we will be glad to prepare one over the next few
days.
Now, as even a rapid scrutiny of the texts to
which I referred will show, most of the treaties contain
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dispute settlement provisions similar in effect, though
often not in exact words, to CCSBT Article 16; in other
words, noncompulsory, non-binding settlement. What is one
to make of this overwhelming body of State practice? Is it
that so many States have chosen to insert in these treaties
dispute settlement provisions that are entirely useless
because they are overridden by UNCLOS Part XV? Or is it, as
seems more likely, that it has never occurred to them that
UNCLOS Part XV would apply to the interpretation or
application of these non-UNCLOS treaties? Or is it that if
it ever occurred to them that UNCLOS Part XV might apply,
that they took the view that its operation could be excluded
by the provisions that they inserted instead? And what
would be the effect of the A/NZ doctrine of the implicit
incorporation of UNCLOS Part XV in all of these treaties
relating to topics touched on by UNCLOS? For the dispute
settlement provision in each of these treaties, one would
need to substitute UNCLOS Part XV and especially Section 2
thereof. Nothing, I suggest, could have been further from
the minds of the States who so expressly excluded compulsory
judicial or arbitral settlement. A decision by this
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Tribunal accepting the A/NZ doctrine would wreak havoc in
the world of dispute settlement and deny to States the right
which they obviously believe they possess to exclude
compulsory judicial or arbitral settlement in treaties
relating to marine resources.
So may I now put a series of positive propositions
based on this material? What can we derive from looking at
all of these treaties?
One, CCSBT Article 16 is not merely not unusual,
it is a generally used type of formula in this kind of
treaty and many others.
Two, if A/NZ is right, dispute settlement clauses
would not have been required in any of the post-January 1982
treaties.
Three, the appearance of this type of clause
reflects a common belief that it is acceptable,
notwithstanding UNCLOS.
Four, whatever UNCLOS may mean in the abstract,
State practice certainly interprets it as not prohibiting
the use of this type of clause.
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Five, if the Tribunal accepts the A/NZ approach,
these treaties will become subject to UNCLOS in a manner
clearly not foreseen by the Parties.
And, six, when States want UNCLOS Part XV
provisions, they make provision accordingly. I omitted in
my survey to take the Tribunal to Part C, where we have
post-January 1982 treaties--that require compulsory and
binding third-party settlement. And the treaty that I would
particularly like to take you to is Item 105, the Agreement
of 1995 for the Implementation of the Provisions of the UN
Convention on the Law of the Sea Relating to the
Conservation and Management of Straddling Fish Stocks and
Highly Migratory Fish Stocks, the so-called Straddling
Stocks Agreement.
And with your leave, I would like to take you to
Article 30, the dispute resolution provision. "The
provisions relating to settlement of disputes set out in
Part XV of the Convention," that means UNCLOS, "apply,
mutatis mutandis, to any dispute between States Parties, to
this Agreement concerning the interpretation or application
of this Agreement whether or not they are also parties to
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UNCLOS. Two, the provisions relating to the settlement of
disputes set out in Part XV of UNCLOS 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."
And I imagine that the Tribunal, like myself, is
wondering whether this provision would be applicable in
CCSBT situation. And the answer is, I suspect, that it
might be if the straddling stocks were to enter into force,
as between the Parties to CCSBT. But it has not entered
into force. And it is not for this Tribunal to attribute to
CCSBT a provision in a treaty that has not yet become
operative.
So, Mr. President, those are my six propositions.
Now, if I may just continue briefly.
These Agreements, in Japan's submission,
effectively dispose of the A/NZ contention that UNCLOS's
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substantive and jurisdictional provisions coexist with CCSBT
on CCSBT matters. Yet, confronted by this argument fairly
and squarely in Japan's Memorial, the A/NZ reply simply
disregards it. No attempt is made to counter it in a
proper, substantive manner.
As we respectfully remind the Tribunal, it's not
as if the approach to dispute settlement chosen by the
Parties is one that was novel or unprecedented or that has
not been followed since. I have given you many examples.
And even as recently as 15 May of last year, Norway, Iceland
and the Russian Federation concluded an agreement concerning
certain aspects of cooperation in the area of fisheries.
Article 10 provides: "Any disagreement concerning the
interpretation and application of the present Agreement,
will be settled by the Parties through consultations." This
provision may not be identical in wording with Article 16 of
CCSBT, but it is identical in effect in that it makes
consultation the sole mode of dispute settlement unless, of
course, the Parties agree otherwise. I apologize for not
having a copy of that Agreement to place before you, but we
are trying to obtain it.
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Perhaps the most striking feature of the Reply is
this almost incredible disinclination to grapple with a most
important section in the Japanese Memorial. The section
that so tellingly demonstrates that CCSBT dispute settlement
provisions are but one of many examples of post-UNCLOS
treaties relating to aspects of UNCLOS subject matter that
deliberately and clearly exclude recourse to UNCLOS
settlement procedures.
The closest that the Reply seems to come to this
matter is the statement towards the end of paragraph 50 on
page 25, where it says, and I quote: "A facultative dispute
settlement provision in an implementing treaty does not
constitute an exclusion of mandatory dispute settlement
under a general multilateral convention to which the
implementing treaty refers, and there is no warrant whatever
in reading Article 16 of the 1993 Convention as if it were
an exception or exclusion from UNCLOS designed to derogate
from Part XV." Of course, if all of the elements in this
proposition could be proved, A/NZ might have something of a
case. But no proof is offered and nor could any be found in
the light of the facts which I have presented to you in the
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last few minutes. The most striking feature of this
statement is the boldness of its pretense that it is in any
way supportable in law. It is no more than a statement of a
conclusion that it should have been the task of A/NZ to
prove.
I respectfully submit that the Tribunal cannot
disregard the implications of the decision that A/NZ seeks
to obtain. If the Tribunal were to find that UNCLOS Part XV
overrides the specific terms of Article 16 of CCSBT, it
would profoundly disturb the host of dispute settlement
provisions in treaties relating to matters covered by or
touched upon in UNCLOS. Provisions in treaties for limited
and, designedly, imperfect settlement procedures or for
potentially effective procedures different from those in
UNCLOS would be open to replacement by UNCLOS Part XV. This
cannot be what the Parties to such agreements intended or
expected. The Tribunal will, of course, see from Part B,
Section 1 of Annex 47 that when States Parties to post-
UNCLOS Agreements have wished to provide for the application
of UNCLOS Part XV-type procedures, they have expressly so
stipulated. And this, in itself, is a clear indication that
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they did not think that UNCLOS Part XV would otherwise be
applicable.
But there is another aspect of the material in
Annex 47 that in a way comes even closer to the heart of the
issue now before the Tribunal. The incorporation into these
agreements on non-UNCLOS dispute settlement provisions
carries with it the implication that the parties did not see
any remaining role for UNCLOS in relation to the substance
of the matters covered by the treaties. This is, of course,
Japan's position in relation to CCSBT. Once adopted, CCSBT
replaced UNCLOS. There's nothing left in UNCLOS that is
relevant to SBT. It's now all in CCSBT. There can be no
dispute about the interpretation or application of UNCLOS in
this connection.
Well, about all this, A/NZ have said nothing.
Their silence is in itself eloquent confirmation of the
correctness of Japan's submissions. The importance of this
submission is in no way lessened because I have left it to
the last. If, contrary to Japan's contention, the Tribunal
accepts that Article 16 is overridden by UNCLOS Part XV, the
results will no doubt be greatly welcomed by the mass of
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underworked and impoverished international lawyers who will
suddenly find themselves confronted with broad new
jurisdictional horizons. But in so doing, this Tribunal
will have introduced chaos into the international treaty
system relating to Law of the Sea matters. Dispute
settlement provisions that were clearly understood and
intended by the parties to exclude compulsory dispute
settlement will suddenly be disregarded in favor of the
overriding effect of UNCLOS Part XV. In terms of the
stability and predictability of the law, no conclusion could
be less acceptable.
Mr. President and Members of the Tribunal, I thank
you for your patient hearing, and respectfully request you
now to call upon my distinguished colleague and learned
friend, Professor Shabtai Rosenne. Thank you.
PRESIDENT SCHWEBEL: Thank you so much, Sir Elihu.
Professor Rosenne, please.
PROFESSOR ROSENNE: Thank you, Mr. President. May
it please the Court, Mr. President and distinguished Members
of the Tribunal.
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May I first express my appreciation to the
Government of Japan that has honored me with a share of the
responsibility for presenting its case before this
illustrious Tribunal. As one who was a delegate in all
three of the United Nations Conferences on the Law of the
Sea and the Straddling Stocks Conference, it is particularly
gratifying for me to take part in this, the first full
proceedings before an Annex VII Tribunal of UNCLOS. The
fact that this is the first case of its kind imposes a
special duty of responsibility on all of us, a little extra
grain of caution. For what this Tribunal does and the
guidance that it will be giving for future cases will be
subject to very close scrutiny by our profession and by the
maritime and legal worlds as a whole.
As the Agent has said, my duty today is to present
Japan's views on the proper construction of Part XV of the
1982 Convention, and in that way to establish that the
Applicants have not met the demands of Part XV, articles 279
to 299 of UNCLOS. You will find, Mr. President and Members
of the Tribunal, the whole text of Part XV in the hearing
book under Tab D. Our distinguished opponents have devoted
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a great deal of sophisticated speculation to this question
in Chapter II (paras. 72-94) of their Reply on Jurisdiction.
Although Japan considers that this dispute does not concern
the interpretation or application of UNCLOS, as Mr. Yachi
has said, we think that we should deal with this aspect, and
in that way furnish the Tribunal with a complete picture of
the case. In this statement I shall accordingly be
referring to different provisions of UNCLOS. This is
without prejudice to Japan's position that this dispute is
not a dispute concerning the interpretation or application
of UNCLOS, but one concerning the interpretation or
implementation of CCSBT. As such, it comes within the scope
of Article 16 of that instrument.
The Reply amplifies the summary treatment of
jurisdiction in paragraphs 36 to 49 of the statements of
claim. It shows that the Applicants have not had recourse
to all the procedures that Section 1 of Part XV of UNCLOS
requires before Section 2 may be invoked. Part XV has three
sections. Section 1, Articles 279 to 285, sets out a series
of general provisions which are the primary rules for the
peaceful settlement of disputes between the parties to
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UNCLOS concerning the interpretation or application of
UNCLOS. Section 2, Articles 286 to 296, deals with
compulsory procedures entailing binding decisions when the
procedures of Section 1 have not produced a settlement of
the dispute. Every one of the requirements of Section 1
must be met before the Applicants may have recourse to
Section 2. Exhaustion of the requirements of Section 1
triggers the operation of Section 2. Section 3, Articles
297 to 299, sets out limitations and exceptions to the
applicability of Section 2.
I will show that our opponents are misinterpreting
UNCLOS, and especially Part XV, Section 1, in a vain effort
to establish that they have fully complied with it. This is
to bring the case within the scope of Section 2. If we read
the Reply carefully, we will quickly find that A/NZ are
basing their contentions on a series of a priori statements
culled from nowhere and for which there is no authoritative
support. Their sole purpose in doing this is to buttress
the allegations that this dispute is a dispute concerning
the interpretation or application of the 1982 Convention.
My contention is that the relevant facts, as they have been
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set out by previous speakers, show that this is a hollow
submission. I shall now attempt to justify that assertion
by a closer examination of the relevant provisions of Part
XV and the Applicants' failure to comply with them.
The Applicants conveniently overlook the basic
rule for the interpretation of treaties that every
international court or tribunal applies. That is the rule
codified in Article 31 of the Vienna Convention on the Law
of Treaties, and I quote: "A treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context"--let me
stress, Mr. President, "in their context, and in the light
of its object and purpose." I do not need to read out the
whole of that well-known article, but I'd like to mention
paragraph 3(b). That specifies that there shall be taken
into account any--and I would like to stress that word
"any"--subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its
interpretation. That practice has been discussed by Sir
Elihu, and I do not need to say anything more about that
now. The Applicants have supplied, as Sir Elihu pointed
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out, no answer to Japan's contentions based on Annex 47 of
the Memorial. That silence alone must put us on inquiry as
to the whole purpose of that part of the Reply. I shall be
referring, of course, to some of the articles cited today by
Sir Elihu. I shall not read them out now, but I would refer
the Tribunal to the texts which are contained in the hearing
book. I am making these references in the context as
expressed this morning by Mr. Yachi, that is the assumption
for the purposes of argument only, that A/NZ have not
satisfied the pre-conditions established in UNCLOS Part XV,
Section 1 before proceeding to Section 2.
A major prop of our opponents' argument is the
contention that UNCLOS is the governing regime concerning
the Law of the Sea. (Reply, para. 26) For them, the
consequence is that Part XV is the primary, if not the only,
legitimate provision for the settlement of disputes relating
to all law of sea matters, "overarching" is the word they
use in paragraph 30 of the Reply. It does not matter what
any other treaty or agreement may lay down. The Applicants'
approach disregards entirely the general and undisputed
character of the 1982 Convention as an "Umbrella Convention"
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in the happy turn of phrase of the International Maritime
Organization, which we have cited in paragraph 199, footnote
89, of our Memorial. That is another way of saying that
UNCLOS is a global convention intended to operate in many
different situations (not all known or well) known, when the
Convention was being negotiated. For that reason it was
deliberately intended to be applied and implemented by
States directly concerned with a given issue through
specially negotiated instruments or other arrangements, such
as decisions of competent international organizations. In
particular, the Applicants' approach completely disregards
State practice in the application of UNCLOS.
This is especially the case of the fisheries
articles, both those regarding coastal fisheries in the
areas of sea under national jurisdiction, including EEZs,
and those regarding high seas fisheries. This is even more
significant when we turn to the mixed category of the highly
migratory species. For these, Article 64, by its very
terms, envisages application and implementation through
agreements that are both species-oriented and regional at
the same time. Those agreements apply wherever a specific
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species is found. The 1993 Convention comes well within
that category of agreement. When the Conference wanted to
ensure the rule to be one of universal application it
deliberately said so. For example, in Article 21, paragraph
2, regarding the design, construction, manning or equipment
of ships and the laws and regulations of the coastal State
relating to innocent passage.
Paragraph 25 of the Reply, we are told that UNCLOS
establishes--and I quote--a "new and comprehensive legal
regime for all ocean space." It is enough to read that
sentence to see the oversimplified view that our opponents
hold of the nature and purpose of UNCLOS. Paragraph 26
spells out this idea. In paragraph 27 they tell us that the
character of UNCLOS is carried through to the provisions on
dispute settlement in Part XV. Quote, "Not only is Part XV
mandatory, it is also general in its application. It
applies unless otherwise stated to the whole range of UNCLOS
obligations." I do not know what "mandatory" means in that
context. Part XV comes fully within the scope of the pacta
sunt servanda rule. (By the way the Latin here is not mine,
but is the title of Article 26 of the Vienna Convention on
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the Law of Treaties.) Every treaty in force is binding upon
the parties to it and must be performed by them in good
faith." In that sense Part XV is binding on all parties to
UNCLOS. The 1982 Convention embodies a package deal. In
that package deal the acceptance of any one of its
provisions was contingent on the acceptance of every other
provision. In that sense, Part XV is binding on all the
parties to UNCLOS. My friend, Sir Elihu, has dealt with
this general contention.
Mr. President, before I go into greater detail
into Part XV, I would like to recall some aspects of the
history of this dispute insofar as is relevant to what I am
concentrating on. The general history has been recounted,
and I do not wish or need to repeat it. As we see it, the
Applicants have been relentless in trying to impose on Japan
their views about the scientific elements and their policy.
They have neglected to take advantage of the different
opportunities that arose for the peaceful agreed solution of
the matter. The Applicants unilaterally terminated CCSBT
procedures and began the present proceedings. They complain
that CCSBT does not contain a compromissory clause, and
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blame Japan for that. But Article 16, as we have shown, is
a product of long and free negotiation. The Applicants
accepted it in its present form without reserve. Japan even
proposed to submit this case to CCSBT arbitration. But the
Applicants summarily rejected that proposal with scarcely a
cursory glance. In paragraph 85 of the Reply, the
Applicants argue that Japan's proposal was belated, but no
attempt is made to explain why.
In that same paragraph the Applicants advance the
curious argument that Japan did not include a specific
proposal for the procedure or the powers of the proposed
arbitration. But that would have been the express purpose
of the negotiation on the organization of the arbitration,
had the Applicants shown any willingness to take the idea
up, which they did not. The Reply complains in that same
paragraph, 85, that Japan did not accept to abandon its EFP.
But no negotiations took place to settle any of the details
of the arbitration that Japan was proposing. In those
circumstances, Japan saw no need for it not to proceed with
its reasonable EFP, which had taken into account, in many
respects, the earlier suggestion of A/NZ. All this leads to
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the conclusion, as manifested in footnote 98 of the Reply,
that what the Applicants wanted more than anything else was
to manufacture a case which could plausibly be put to ITLOS
for the prescription of provisional measures, and not a
genuine attempt to seek a reasonable and viable settlement
of the dispute concerning the interpretation or
implementation of CCSBT.
I shall now deal more particularly with the
requirements of Part XV, and specifically with those of
Section 1, to show how the Applicants have failed to meet
them. I will start at the beginning, at Article 279, which
opens Part XV. Article 279 establishes the principle of the
peaceful settlement of disputes concerning the
interpretation or application of the Convention, through the
means indicated in Article 33 of the Charter. I do not find
any mention of this in the Reply, beyond the perfunctory
aside in paragraph 73. Yet this is a key provision. It is
the lead provision for the whole of Part XV.
How are the disputes to be settled? Article 280
gives the answer. There is no need for any interpretation
of Article 280. It rings loud and clear. This is the
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pivotal article that guarantees the necessary flexibility of
the dispute settlement procedure of Part XV. Without that
flexibility inherent in the whole of Part XV, I doubt if the
Convention, this umbrella global convention, could ever have
been concluded. The Tribunal will not lose sight of the
fact that the Reply is silent about Article 280, not even a
cursory aside. Its text is so clear that the sophisticated
aphoristic speculative interpretations found elsewhere in
the Reply can have no place here.
I now turn to Article 281, dealing with the
procedure to be followed where no settlement has been
reached between the parties. That refers, of course, to a
settlement reached through the application of Article 280, a
settlement reached through the peaceful means of the
Parties' own choice. We have already shown that Article 16
of CCSBT is the agreement, and the peaceful means of the
Parties' own choice, to take the language of Article 280,
for southern bluefin tuna. We have shown that in CCSBT the
Parties deliberately, and after careful examination and long
negotiations, adopted Article 16 in full knowledge of the
provisions of Part XV of UNCLOS. On 15 July 1999 the
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Applicants themselves abruptly terminated the negotiations
and consultations for the settlement of this dispute in
accordance with Article 16 of the 1993 agreement, in a note
which is at pains to throw the onus on the Respondent, on
Japan, on that day they both formally notified Japan that
they were instituting proceedings under Annex VII of UNCLOS,
and I refer to Annexes 45 and 46 of the Japan Memorial.
In paragraph 155 of the Reply, the Applicants
advance the argument that Part XV establishes a mandatory
jurisdiction for disputes that concern the interpretation or
application of UNCLOS. Again, that word "mandatory"
appears. I do not know where our opponents find that idea
in Part XV, Section 1. That section sets out the general
principles for the peaceful settlement of disputes
concerning the interpretation or application of the
Convention. Throughout, it stresses the fundamental
optional character of the choice of method for the
settlement of any dispute. If there is between the parties
to the dispute an agreement imposing on them the obligation
to resolve the dispute through a binding settlement, that
obligation is preserved. If there is between the parties to
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the dispute an agreement imposing some other method for
resolving the dispute, that, too, is preserved. Where do
the compulsory binding procedures come in? According to
Section 2, Article 286, only where, and I quote, "no
settlement has been reached by recourse to Section 1," end
of quotation. That is where Article 281 enters into the
picture. Our contention is that the record shows that the
Applicants have not exhausted the requirements of Section 1,
and that no amount of sophisticated interpretation side-
stepping Article 31 of the Convention on the Law of Treaties
can overcome this deficiency.
I want now to deal with the extraordinary
contention in Footnote 166 on page 68 of the Reply that the
phrase "agreement between the parties" in paragraph 1 of
this Article is concerned with what the Applicants term, and
I quote, "ad hoc agreement to settle a dispute, not with a
compromissory clause in another treaty," end of quotation.
Basing myself again on Article 31 of the Vienna Convention
on the Law of Treaties, I must ask our distinguished
opponents where do they find that. By what alchemy do they
manage to transmute a single word in Article 281, that is
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the word "agreement," into a phrase of 17 words? Why do
they refer to an "ad hoc agreement to settle a dispute,"
when what we are talking about and what Article 281
addresses is a specific dispute that has arisen, a dispute
which comes within the scope of the dispute settlement
provision of another treaty or is the subject of a special
agreement, an ad hoc agreement?
That argument has many flaws. It completely
overlooks the words "at any time" in Article 280. Those
words are linked to Article 281 by the words "have agreed"
in Article 281, paragraph 1. "At any time" does not need
any interpretation. The words mean what they say, at any
time in the past, or at any time in the future. An
agreement for the purposes of Article 281 can be concluded
both before and after a dispute arises. CCSBT also foresees
the possibility of disputes, and as I have said, here
Article 16 embodies the Parties' own choice of procedure to
settle disputes about Southern Bluefin Tuna. In paragraphs
74 to 89 of the Reply, the Applicants make a great effort to
show that they have tried very seriously to settle the
dispute by peaceful means as is required by Article 281.
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What they present is indeed a long list of activities that
have taken place within the framework of CCSBT. This shows
that they, too, accepted CCSBT as the agreement to which
Article 281 refers.
An interesting feature of Part XV is its general
insistence on preserving the consensual basis of the
jurisdiction of all dispute settlement procedures and the
autonomy of the will of the parties regarding dispute
settlement, and its insistence on preventing any abuse of
those principles.
Article 281 is in that class. Its major purpose
is to prevent abusive exploitation of the compulsory
procedures of Part XV, Section 2. When any other agreement
between the parties governing the subject matter of the
dispute has its own procedures, whether or not those
procedures lead to a binding settlement, that procedure
replaces the procedure of UNCLOS. In this case, it is CCSBT
procedure. Let me refer you to paragraph 1 of Article 281--
paragraph 2 is not relevant in this case--always keeping in
mind Japan's fundamental position that this is not a dispute
concerning the interpretation or application of UNCLOS.
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Mr. President, I do not know what your intention
is, whether you would like to break now--this would be
convenient--or whether I should continue.
PRESIDENT SCHWEBEL: Professor Rosenne, why don't
you go on for another 15 minutes or so because I am not sure
coffee will be ready this early.
PROFESSOR ROSENNE: Thank you, Mr. President.
Back to Article 281, paragraph 1 carefully sets
out two requirements. The first is that no settlement has
been reached by a peaceful means of the parties' own choice.
Insufficient effort has been made to settle the dispute by
the peaceful means that the parties have chosen for SBT,
namely those set out in Article 16 of the Convention. The
second requirement is that the means of the parties' own
choice does not exclude any further procedure. The
agreement between the parties, Article 16 of CCSBT, does
exclude further procedure beyond what is stipulated in
paragraph 1 without the consent of all the parties to the
dispute. This means that CCSBT excludes further procedures,
including the compulsory procedures of UNCLOS without the
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consent of the parties. Therefore, neither of the
requirements of Article 281 have been met.
Let me elaborate. First, if the Applicants had
reached the conclusion that the commencement of the EFP
terminated negotiations under the 1993 Convention, Article
16, paragraph 2, of that Convention does not absolve them
"from the responsibility of continuing to seek to resolve it
by any of the various peaceful means" to which paragraph 1
refers. Article 16, paragraph 2, obliges them to continue
to seek to resolve the dispute in accordance with Article
16. But the Applicants have done nothing of the sort. What
do we find in that long recital of activities under CCSBT
that took place up to June 1999? Rejection of all Japan's
proposals. This culminated in the Applicants' completely
subjective statement that Japan had unilaterally terminated
the negotiations under Article 16. We do not find any
serious attempt to reconcile their position with that of
Japan, no attempt to explore the different methods for
resolving the dispute enumerated in Article 16. What we
have is a swift vault from the consultations that are the
first requirement of Article 16 in an attempt to reach
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agreement to the present proceedings, with the ITLOS
interlude occupying a prominent place in the development of
the scenario. Thus, the first condition of Article 281,
paragraph 1, is not met. Second, without warning, they then
unilaterally began these arbitration proceedings under
UNCLOS and immediately approached ITLOS with a request for
the prescription of provisional measures under UNCLOS
Article 290, paragraph 5. That unilateral action is itself
a violation of the 1993 agreement, which excludes recourse
to compulsory settlement procedures without the consent of
all parties to the dispute, and I refer again to Article 16,
paragraph 2. That includes compulsory settlement procedures
under UNCLOS. Thus, the second condition of Article 281,
paragraph 1, is not met.
If our opponents will again excuse something in
Latin, which I am sure they all understand, ex turpi causa
non oritur jus. Their violation of the 1993 Convention does
not entitle them to invoke UNCLOS. I would recall here the
chronology carefully recounted this morning by Sir Eli.
When the parties were negotiating CCSBT, UNCLOS had not
entered into force, and the establishment of ITLOS seemed
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remote. That is why the Preamble notes the adoption of
UNCLOS as Sir Eli has explained.
In that same Footnote 166 of the Reply, we find
the surprising statement that Japan's contentions regarding
the applicability of CCSBT to this dispute are not open to
this Tribunal because of Article 293. But what does Article
293 say? A court or tribunal having jurisdiction under this
section, that is, Section 2 of Part XV, not Section 1, shall
apply UNCLOS and the other rules of international law not
incompatible with UNCLOS. I would make two observations on
that. First, Article 293 is only applicable to this
Tribunal if this Tribunal has jurisdiction under Part XV,
Section 2, of UNCLOS. That is the very question now before
the Tribunal: Does it, or does it not, have jurisdiction
under Section 2? If that argument of the Applicants has any
relevance, which Japan denies, that would apply to the
merits, not to this phase of the case. Secondly, the words
"not incompatible with this Convention" apply to "other
rules of international law," not to other treaties which are
governed by other provisions of UNCLOS. Article 16 of CCSBT
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is one of the agreements to which Articles 280 and 281
refer.
In that same Footnote 166, the Applicants contend
that CCSBT is an agreement that comes within the scope of
Article 282. As I shall show next, this completely misreads
Article 282, and is another red herring, if I may use that
expression in this case, drawn to confuse the reader of the
Reply.
I now want to turn more directly to Article 282,
and to paragraph 91 of the Reply. Article 282 parallels
Article 281. I will not read out because the text, as I
said, Mr. President and Members of the Tribunal, is in the
book. Mr. President, Japan agrees with the statement in
paragraph 91 of the Reply that Article 16 of CCSBT "leaves
everything for subsequent agreement of the parties." That
was the deliberate intention of the three States when they
negotiated and concluded CCSBT and brought it into force by
ratifying it in 1994. The negotiating history leaves no
room for doubt or equivocation. However, the Applicants say
that CCSBT is an agreement within the scope of Article 282,
and that since CCSBT does not have a compulsory procedure,
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it cannot exclude the compulsory procedures of Part XV of
UNCLOS. That is not correct. It is not through Article 282
that CCSBT excludes the compulsory procedures of UNCLOS. It
is through Article 281 that Article 16 of CCSBT excludes the
compulsory procedures of UNCLOS.
The wholesale exclusion of Part XV procedures
where there is an agreement between the parties, as argued
in paragraph 91 of the Reply, overlooks the significance of
the words, and I quote, "or otherwise" and "at the request
of any party" in Article 282. I would like to say a few
words about that. The words "or otherwise" are widely
understood to refer to declarations made under Article 36,
paragraph 2, of the Statute of International Court of
Justice, the optional clause or the compulsory jurisdiction.
If the Applicants take the position that CCSBT cannot
exclude compulsory procedures and that the UNCLOS procedures
can exist side by side, then logically, since all parties to
this arbitration have made declarations accepting the
compulsory jurisdiction, that procedure should apply in lieu
of the procedures provided for in Part XV. In such a
situation, under Article 282 the Applicants should have
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invoked the ICJ procedure first. Thus, they failed to
comply with that provision of Article 282. In advancing
this particular contention, Mr. President, I do not want to
imply that Japan was or is willing to accept a unilateral
application to the International Court. Any unilateral
application would be met by similar challenges to those that
Japan is advancing here. My point is to show that even
under the Applicants' assumption that CCSBT cannot exclude
compulsory procedures, they cannot under Article 282 put
this Tribunal ahead of the ICJ. The Applicants have not met
the requirements of Section 1 of Part XV of UNCLOS, so as to
bring Section 2 into operation.
I would now turn to Article 283. Article 283 of
UNCLOS refers to the obligation of the parties to exchange
views regarding the settlement of a dispute between the
parties to UNCLOS regarding its solution by negotiation or
other peaceful means. In all the diplomatic correspondence
that has been exchanged between the parties in this case,
there is no mention whatsoever of conducting negotiations in
accordance with Article 283 of UNCLOS. Japan should have
been given an opportunity to negotiate the best forum in
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which to settle the dispute. There is mention of conducting
negotiations in accordance with Article 16 of CCSBT. I do
not need to repeat what has been said in these statements
regarding the negotiations that have taken place within the
framework of CCSBT Article 16 and their relation to UNCLOS
Article 283. Nothing in Article 283 envisages as conclusive
a unilateral determination by one party that the
negotiations are terminated for whatever reason. If
anything, it requires the parties to continue their efforts
to reach a settlement by means other than direct
negotiations or consultations. I would like here, Mr.
President, to refer to paragraphs 283.3 to 283.5 of the
Virginia "Commentary" in Volume V at page 39. As that
extract is long, we have included it in the hearing book at
Tab E. The new documents filed by Japan before these
hearings began show that negotiations regarding the EFP are
continuing at this very moment.
From what I have said, we reach the conclusion
that the Applicants have not followed the procedures
required by Part XV, Section 1, as the essential preliminary
to the invocation of the compulsory procedures of Part XV,
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Section 2. Of the procedures listed in Article 33 of the
Charter, incorporated in Article 279, the Applicants have
had recourse only to negotiation which they unilaterally
terminated. Incidentally, had the negotiation ended in
agreement, the agreement would be as binding as any third-
party judgement or award. In violation of Article 280, they
have not had recourse to the procedures to which they have
given their consent, the procedures of Article 16 of CCSBT.
They have completely ignored Articles 281, 282, and 283 of
UNCLOS. They have made no attempt to have recourse to any
form of conciliation under Article 284 or under Article 16
of the CCSBT. They have done nothing required by Section 1.
They have not exhausted Section 1, and they have not met the
major requirement of Article 286 that no settlement has been
reached by recourse to Section 1. Accordingly, this Annex
VII Arbitral Tribunal has no jurisdiction under Article 288,
paragraph 1.
Mr. President, I have probably 15 more minutes to
go, so I am in your hands, whether you want to break now or
for me to continue.
PRESIDENT SCHWEBEL: Why don't you finish?
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PROFESSOR ROSENNE: As you wish, Mr. President.
Mr. President and distinguished Members of the
Tribunal, it may seem unusual that an Arbitral Tribunal
should be asked to decide a matter of its own jurisdiction
before going any further with the case that is before it,
unusual but not unknown. It's enough for me to mention
Article 9 of the Model Rules on Arbitral Procedure adopted
by the International Law Commission in 1958. (Yearbook of
the ILC, 1958/II, at 84) An Annex VII arbitration is a new
type of arbitration created by UNCLOS, and UNCLOS, in
Article 288, paragraph 4, recognizes that the question can
arise. Following the approach of our opponents, I will here
also look at UNCLOS as a whole, and then look at Part XV as
a whole in its context. As we all accept, UNCLOS, as a
whole, is, as I have said, an umbrella or a framework
convention of global application. Many of its provisions
are deliberately intended to be implemented by further
agreements, and Part XV is no exception. A careful look at
Part XV in its context will show that the Conference was at
least as much concerned with preventing disputes as with
their resolution, as Judge Ranjeva, who participated in the
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Conference, has pointed out in his important chapter on the
settlement of disputes in A Handbook on the New Law of the
Sea, produced by the Academy of International Law under the
general editorship of Rene-Jean Dupuy and Daniel Vignes
(Vol. I, p. 1335). He also points out (p. 1343) that in the
event of parties to a dispute having a choice between
procedures entailing a binding decision and those entailing
an optional decision, the Convention gives precedence to the
former, but without impairing the free choice of the
parties. That is the position here. The Parties have
chosen, not ad hoc, but in general, through the 1993
Convention, a procedure entailing an optional decision, and
that is in full conformity with the general thrust of
UNCLOS. If Article 16 is to be characterized by its
circularity, that is exactly what the negotiating States
intended. The Applicants cannot be permitted to go back on
their agreement.
In Paragraphs 143 and following, the Reply takes
issue with Japan's argument concerning the relationship of
CCSBT with UNCLOS, in particular on the basis of Article 311
of UNCLOS. I do not want to repeat what has been said about
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this during this hearing. Not one of the substantive
articles of UNCLOS on which the Applicants are relying, that
is, Articles 64 and 116 to 119, contains any provision that
could in the slightest manner be interpreted as requiring
only a binding third-party settlement should any dispute
about it arise. In fact, if Article 64 alone is involved
and the dispute concerns fishery activities in sea areas
over which the coastal State has sovereign rights or
jurisdiction, Article 297 would severely limit the powers of
the dispute settlement organ seized of the case. Nothing in
any of those articles even hints that they are in respect of
dispute settlement different from any other provision of
UNCLOS that is an erga omnes provision, stating the rights
and duties of all States. Indeed, it could not be
otherwise. As we have shown, compulsory dispute settlement
is not the primary characteristic of Part XV, but rather
more dispute prevention. There is simply nothing in UNCLOS
or in any other instrument that could render CCSBT
incompatible with UNCLOS within the meaning of Article 311,
simply because it does not include a compulsory dispute
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settlement provision, but a voluntary or optional one in the
words of Judge Ranjeva.
Without prejudice to Japan's basic view that this
is not a dispute concerning the interpretation or
application of UNCLOS, I have to explain why, after full
argument, we cannot accept the findings of ITLOS in its
Order of 27 August 1999. I want to do this in the context
of my general statement covering Part XV of UNCLOS and the
assumption under which it is being made. The Hamburg
Tribunal, although it did not address Article 16, paragraph
2 of CCSBT, found that a State Party is not obliged to
pursue procedures under Part XV, Section 1 of the Convention
when it concludes that the possibilities of settlement have
been exhausted--that's paragraph 60--and that requirements
for invoking the procedures under Part XV, Section 2 of the
Convention, have been fulfilled. (para. 61) ITLOS also
expressed its view that the fact that CCSBT applied between
the parties does not preclude recourse to the procedures of
Part XV, Section 2 of UNCLOS. (para. 55) Although we do
not agree with those and other conclusions of that respected
Tribunal, we submit that they have no relevance for this
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Tribunal. ITLOS was acting under Article 290, paragraph 5
of UNCLOS. That is a special provision applicable when an
Annex VII arbitration is the competent procedure under
Article 287 of the Convention. Today we are acting under
Article 288, paragraph 4, of UNCLOS, in incidental
proceedings, trying to determine the jurisdiction over the
merits. Article 290, paragraph 5, empowers ITLOS in part,
as a stopgap measure, to prescribe provisional measures
pending the constitution of the arbitral tribunal--and I
quote--"if it"--that is, ITLOS--"considers that prima facie
the tribunal which is to be constituted would have
jurisdiction." End of quotation. There are a lot of "ifs"
in that. ITLOS had to establish its own competence to
prescribe those provisional measures, and that limited
purpose required it to reach a decision as to the prima
facie jurisdiction of this Arbitral Tribunal.
The expression, quote, "if it considers that prima
facie the tribunal which is to be constituted would have
jurisdiction", end of quotation, that is, of course,
jurisdiction over the merits, as set out in the statement of
claim, that is taken from the law and practice of the
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International Court. It has always included the possibility
that after full examination, the Court or Tribunal could
find that it lacked jurisdiction to determine the case.
That occurred on the first occasion when this expression was
used, in the Anglo-Iranian Oil Company case in 1952. (ICJ
Reports 1952, pp93) Shortly before the ITLOS proceedings,
the International Court explained the meaning of this
expression in the ten well-publicized cases brought by
Yugoslavia against member states of NATO. And I quote: "On
a request for provisional measures the Court need not,
before deciding whether or not to indicate them, finally to
satisfy itself that it has jurisdiction on the merits of the
case, yet it ought not to indicate such measures unless the
provisions invoked by the applicant appear, prima facie, to
afford a basis on which the jurisdiction of the Court might
be established." That is taken from the order in the case
against Belgium of 2 June 1999, paragraph 21. The expression
"might be established," you will forgive me, Mr. President,
if I recall the three meanings that you have given to those
words in such a context: possibly might, might well, might
probably, in the Nicaragua (Provisional Measures) case
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(1984). The ITLOS Order in paragraph 52 says just that, the
provisions of UNCLOS invoked by the Applicants, quote,
"appear to afford a basis on which the jurisdiction of the
arbitral tribunal might be founded." End of quotation.
Nothing more is to be read into that.
In two of those NATO cases, those against Spain
and against the United States, the Court gave a further
explanation of the nature of the prima facie jurisdiction
required in provisional measures cases. It means that the
lack of jurisdiction must be manifest. If the lack of
jurisdiction is manifest, there is no competence to order
provisional measures. (Order in Spanish case, para. 35;
Order in US Case, para. 29) That puts the threshold even
lower. If the lack of jurisdiction was not manifest to
ITLOS, that does not mean that this Tribunal, after thorough
examination, cannot find that it has no jurisdiction.
Clearly, there can be no comparison between the low
threshold jurisdiction required for the indication or
prescription of provisional measure of protection, and the
jurisdiction required for a court or tribunal to determine
the merits of a case. The first is reached after summary
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proceedings in which the issue of prima facie jurisdiction
over the merits may be overshadowed by the element of
urgency inherent in provisional measures proceedings.
At this point, Mr. President, Japan would express
its regret at the statement in paragraph 31 of the Reply,
that this Tribunal--now I quote--"should lean in favor of
the effectiveness and comprehensive character of the dispute
settlement regime." What the Reply means, of course, is
that this Tribunal should find in favor of the Applicants.
Japan is confident that this Tribunal will not lean in any
direction except that of the law, and that it will apply the
law as it is, upright, and without let or hindrance.
With that, Mr. President, I have completed my
statement, and I thank you and Members of the Tribunal for
your attention. I would ask you at a convenient time, to
call on Professor Lowe, who will continue with the
presentation of Japan's contentions in this case. Thank
you.
PRESIDENT SCHWEBEL: Thank you so much, Professor
Rosenne.
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We shall now suspend for 15 minutes, please.
[Recess.]
PRESIDENT SCHWEBEL: Professor Lowe.
PROFESSOR LOWE: Thank you, President. May it
please the Court, Mr. President, distinguished Members of
the Tribunal.
May I first express my appreciation to the
Government of Japan for the honor that it has done me by
giving me the responsibility for the presentation of this
part of its case to this distinguished Tribunal. My duty is
to present Japan's submissions bearing on the question of
admissibility of the Applicants' claim. And I shall deal
first with the question of the susceptibility of the
Application to judicial settlement; next--and more briefly--
with the arguments on good faith and abuse of process; and
finally I shall address the question of the mootness of the
Application.
While my role is in one sense to bring the
presentation of the Japanese case to a close, in another
sense my purpose is to drive right back to the basic facts
upon which the whole approach of the Japanese Government to
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these proceedings has been built. The Japanese case, in its
essence, is simply this. We say to Australia and New
Zealand: in the 1980s we recognized the need to cooperate
in safeguarding and managing the SBT stocks; and in 1993 we
made an agreement with you on how to do that. We all
anticipated the possibility of disputes arising over SBT;
and we all agreed on how we would deal with such disputes.
Why will you not now keep to that agreement?
What can Australia/New Zealand say in response to
that? Yes, we signed the agreement, but we never said that
we wouldn't do anything other than what we agreed. When we
agreed to CCSBT disputes procedure, we didn't actually say
that it was the only disputes procedure that we might use.
Well, there's always a certain worry when legal
argument departs too far from common sense and from basic
principles, such as the principle that a State should act in
good faith and fulfill its agreements. It is not merely a
matter of one or other party feeling disappointed. It's a
matter of the weakening of the whole fabric of the law.
States need to be confident that when they make agreements,
they can rely on them. And the presentation of the Japanese
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case has tried to show that in this case common sense and
law point in exactly the same direction. Japan, Australia
and New Zealand made an agreement on SBT; that agreement
contained a provision stipulating how disputes would be
settled; and as a matter of law, Australia/New Zealand
should keep to that agreement. Japan asks no more than
that.
Sir Eli Lauterpacht has shown that, as a matter of
international law, Australia/New Zealand are bound to do
that. The 1993 agreement, as lex specialis, does what
special agreements are meant to do. Article 16 of CCSBT
stipulates how disputes arising from CCSBT are to be
settled, and it renders recourse to UNCLOS redundant.
Australia/New Zealand may say, "Yes, but CCSBT
procedure doesn't provide for any unilateral references of
disputes to arbitration in the way that UNCLOS does." We
understand that. That's the procedure that Australia, Japan
and New Zealand agreed to follow.
And we didn't agree upon CCSBT procedure by some
random choice, or because of some sweeping Japanese
opposition to compulsory arbitration. Japan accepts
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compulsory judicial dispute settlement wherever it is
appropriate. It has accepted it in its Optional Clause
declaration made under the Statute of the ICJ; and it has
accepted it in Optional Protocol to the Vienna Convention on
Diplomatic Relations, for example. But in the case of
CCSBT, compulsory judicial settlement was not appropriate,
and the three Parties agreed upon a different approach.
The reason why it was not appropriate is that the
very nature of the work of the Commission on SBT, of its
Scientific Committee and of the various agencies of the
States Parties working with CCSBT, is such that the
differences that are likely to arise from that work are not
the kind of differences that it's appropriate to put, by
unilateral application, before highly trained lawyers for a
judicial settlement.
If one reads CCSBT, it is quite clear why this is
so. In will not take the Tribunal through the details.
They are there for everyone to read. In summary, CCSBT
provides for cooperation in the gathering and accumulation
of scientific information, statistics, biological samples
and other data; the coordination of research, the analysis
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of data, the formulation of recommendations on conservation
by CCSBT Scientific Committee; and for decisions by
consensus in the Commission for SBT regarding Total
Allowable Catches and national quotas.
Article 16 of CCSBT was adopted in order to
provide a dispute settlement procedure tailored to the
particular kinds of dispute expected to arise from that
agreement. There's nothing unusual in this: States have
made scores of treaties relating to the Law of the Sea, that
contain their own dispute settlement procedures. And Sir
Eli has made the point that the Parties have agreed to
Article 16 and they must comply with it in relation to SBT
disputes, just as they are bound by UNCLOS procedures in
relation to high seas fisheries not covered by special
agreements. But here I'm concerned with another important
aspect of the point concerning Article 16.
As In said, the reason that made the Article 16
procedure preferable to unilateral applications to judicial
tribunals is that it is very unlikely that disputes arising
out of CCSBT, apart perhaps from some technical disputes
concerning the headquarters of the Commission, things of
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that kind, will be of a nature that renders them amenable to
legal analysis and decision. There would, therefore, be no
point in trying to put them before a judicial tribunal.
Quite apart from the effect of the duty to comply with
Article 16, no judicial tribunal could properly attempt to
deal with such disputes because such disputes are not
susceptible to a legal decision; they're not justiciable.
And the present case is just such a dispute. It's
not justiciable because it is confined to questions of
scientific judgement.
And this is one reason why Japan is resisting the
present proceedings, and why Japan offered last July to
negotiate an ad hoc reference of this dispute to
arbitration. A negotiated reference would have permitted
the agreed identification of the precise matters over which
the Parties differed, and the construction of a tribunal and
a procedure specially adapted to deal with those matters.
But the Japanese offer was rejected out of hand by A/NZ, the
day after it was made.
The essentially scientific nature of this dispute
is apparent from the remedies sought by the Applicants--a
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point which Japan made in passing in its Memorial, simply in
order to demonstrate that whatever the angle from which the
Applicants' case is approached, it's evident that they're
dressing up a scientific controversy in the guise of a legal
dispute like a sheep in wolf's clothing, in the hope that
they will be allowed to use the UNCLOS compulsory procedures
against Japan.
In shall return to the detail of the remedies
sought shortly, but the nature of the dispute is
demonstrated even more clearly in the A/NZ Reply. They
assert, in paragraphs 167 to 172, that there is an issue
susceptible to judicial settlement underlying this dispute.
But their own account of the facts tells a different story.
Paragraph A38 of the Reply, which you have in the binder at
Tab H, conveniently summarizes the reasons for the rejection
by Australia/New Zealand of Japan's EFP proposals, and it
reads as follows:
A38. "By way of conclusion, the reasons why A/NZ
was unable to accept Japan's 1998 and 1998 unilateral
experimental fishing proposals involving an increase above
the last agreed TAC are as follows:
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(a) A/NZ considers that neither the 1998 nor 1999
proposals satisfied the agreed 1996 Objectives and
Principles;
(b) Japan's unilateral experimental fishing is
misdirected relative to resolving the differences over the
prospect of recovery under current catches;
(c) the experimental design and analysis are
fundamentally flawed; and
(d) Japan has also not provided adequate mechanisms to
ensure the scientific validity of the data provided by its
vessels carrying out the experimental fishing.
Thus, the objectives and design of the experiments
clearly 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."
That paragraph sums up the very heart of this
dispute. That is what all this argument is about; and I
shall show later, when In address the question of mootness,
that there are no other matters in dispute. Yet, every one
of those reasons for the rejection by Australia/New Zealand
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of Japan's proposals, every one of the causes of the current
impasse, relates not to questions of law, but to matters of
scientific judgement. Let me take them in turn.
(a) refers to the EFP "satisfying" CCSBT 1996
Objectives and Principles. Those Objectives and Principles
proceeded from the recognition, and In quote, "that the lack
of adequate scientific information impedes the ability of
the Commission to make sound management decisions," and
proposed guidelines for the establishment of a
scientifically valid EFP to be agreed by the parties. (b)
alleges the misdirection of the Japanese EFP, plainly a
matter of scientific judgement. (c) refers to a flawed
experimental design, and (d) to mechanisms for ensuring the
scientific validity of data. These are the matters at the
core of this dispute; and they are plainly scientific, and
not legal, matters.
Indeed, they are matters of scientific judgement.
They are not even matters of scientific fact, and those two
concepts are different. If a case involves a question of
scientific fact, a tribunal might perhaps seek the
assistance of scientific experts. Experts might, for
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example, tell the tribunal whether Pharmaceutical Drug A is
materially identical to Pharmaceutical Drug B or to Chemical
Compound C. Experts might advise whether one test for
contamination is as sensitive as another or what mesh size
is necessary to avoid the catching of 4-year-old SBT. These
are essentially factual questions, albeit complex and
technical questions. But questions as to how good the
designs of experiments and validating mechanisms, like the
setting of Total Allowable Catches and the recommendation of
conservation matters, are questions of scientific judgement,
of science policy, if you will; and they are no more
justiciable than other policy issues, such as the allocation
of national fishing quotas.
How could a legal tribunal judge whether the
Applicants' opposition to the experimental design or the
direction of Japan's EFP, or their criticisms of its
scientific validity, justified them in their abrupt
termination of negotiations and the unilateral institution
of these proceedings? These are not questions of scientific
fact. They are questions of scientific judgement. There is
no question that the judges could put to scientific experts,
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the answer to which would enable the judges in their turn to
decide the case. If scientific experts were consulted on
these matters, the Tribunal would have no choice but to
abdicate to the scientists their responsibility for deciding
the matter.
A/NZ cite, in paragraph 171 of their Reply, a
passage in the ICJ's Nuclear Weapons Advisory Opinion, to
the effect that the fact that a question has political
aspects cannot deprive the question of its legal character.
That is plainly correct. Law is a social science. It
operates in a society. All legal disputes have a political
character. But to assert that one may simply substitute the
word "scientific" for "political" in that passage is absurd.
Science is a discipline. It has its own methods
of proof and of judgement, its own frames of reference, its
own criteria of right and wrong, of good and bad; and a true
feeling for those methods and criteria requires a very high
level of skill and training.
Lawyers are, of course, used to acquiring a
smattering of science when it is necessary for litigation:
an understanding of metal fatigue in tankers, of mesh sizes
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and by-catches in fisheries disputes and so on. Lawyers are
well able to understand enough science to enable them to
handle legal disputes that involve scientific evidence or
scientific concepts. But that is a very different matter
indeed from treating as scientific controversy as if it were
a legal dispute. Lawyers can, for example, deal effectively
with a contractual claim concerning a malfunctioning radio
telescope; but not since the days of Galileo has it been
thought appropriate for lawyers to rule on questions of
cosmology.
International tribunals are sometimes faced with
issues beyond the limits of judicial settlements, although
instances are rare because States are usually more prudent
than to take inappropriate disputes before judicial
tribunals. Perhaps the best known examples come from the
ICJ, in the Haya de la Torre case where it rejected the
application because a decision on the question before it
"could not be based on legal grounds" (ICJ Reports 1951, at
79) and in the Fisheries Jurisdiction cases where it
remarked on the difficulties that would have faced the Court
if it had attempted to lay down a scheme for an equitable
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adjustment of the fishery rights there in dispute (ICJ
Reports 1974, at 31-32). In each case, the problem was that
there was no legal basis upon which the question before the
Court could be decided.
The same is true here. The issues in this case
are not legal issues. They are not even technical aspects
of a legal dispute. This is a scientific controversy, pure
and simple; and to ask a judicial tribunal to rule on the
question whether Japan's proposed experimental design was
fundamentally flawed is, with respect, plainly to invite the
Tribunal to go beyond the limits of judicial competence.
Australia and New Zealand may protest that this is
a travesty of their case. They may say that they are
complaining of specific breaches of Japan's legal
obligations under specific Articles of UNCLOS. But it is
not enough for the Applicants to use legal terminology and
legal formulas in their Application. That alone cannot
convert a scientific controversy into a legal dispute. One
has only to consider what the position would be if a
tribunal were asked, for example, for a declaration that
Japan or Indonesia is obliged by UNCLOS Article 116 (right
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to fish on the high seas) to cease fishing for Southern
Bluefin Tuna less than Y kilograms in weight, or to take no
more than X tons of SBT per year. These may look like legal
questions. They may be couched in the language of rights
and duties and UNCLOS Articles. But a tribunal could not
answer them in those legal terms, particularly in the face
of significant scientific controversy. It could do no more
than refer to the legal duties of conservation and so on,
which would probably not be in issue, before it had to make
a scientific judgement on the proper weight or catch limits-
-or indeed hand over the making of such a judgement to
scientific experts.
Here, there is no dispute over the general
conservation duties. The dispute is only over the accuracy
of particular scientific predictions and judgements
concerning SBT. That is why this controversy is not
susceptible to legal judgement.
A/NZ assert that the dispute is susceptible to
legal judgement, but the only support that they offer for
that assertion seems to be the reference in paragraph 178 to
Article 7 of the Straddling Stocks Agreement. Article 7
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refers to the duties of States concerning cooperation in
fisheries conservation and management under the Straddling
Stocks Agreement. It provides for decisions to be taken by
agreement and for the invocation of the dispute settlement
provisions in the event that agreement is not reached within
a reasonable period of time. Article 7 does not actually
provide for dispute settlement.
Curiously, A/NZ do not refer to the articles of
the Straddling Stocks Agreement that do provide for dispute
settlement. Article 29 of the Straddling Stocks Agreement
(which you will find at Tab L in the binder) which is headed
"Disputes of a Technical Nature," reads as follows: "Where
a dispute concerns a matter of a technical nature, the
States concerned may refer the dispute to an ad hoc expert
panel established by them. The panel shall confer with the
States concerned and shall endeavor to resolve the dispute
expeditiously without recourse to binding procedures for the
settlement of disputes."
In the Straddling Stocks Agreement, clear
preference is given to non-binding settlement for technical
disputes. The Straddling Stocks Agreement quite clearly
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embodies the view that technical disputes are better not
sent for judicial settlement. This was the very point that
Japan was anxious to secure, and did secure, in Article 16
of CCSBT. It made no more sense to ask lawyers to settle
the scientific controversies than it would have made to ask
the scientists to draft the treaty.
Certainly, the Straddling Stocks Agreement follows
this provision by creating the possibility of a reference of
unresolved technical disputes to judicial settlement, but
notice how it does that. Article 30 of the Straddling
Stocks Agreement has already been read out by Sir Eli.
The Straddling Stocks Agreement (which Japan has
not ratified) makes explicit provision for the application
of UNCLOS Part XV procedures, including Annex VII Tribunals
and Annex VIII Scientific Tribunals conciliation and so on.
But there is, as Sir Eli pointed out, absolutely no such
provision in CCSBT. The approach of the Straddling Stocks
Agreement to dispute settlement, far from helping the
Applicants' claims, underlines the basic common sense of the
Japanese position.
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Well, there are two other matters with which In
must deal, and these are the questions of the relevance of
the arguments on good faith and on abuse of process, and
neither will take much time.
Australia and New Zealand say in paragraphs 180 to
187 of their Reply that they do not see the relevance of the
Japanese points concerning good faith and the need to show
that there is, prima facie, a case that might be made out
against Japan.
The point made by Japan is this. A Statement of
Claim must contain sufficient detail to disclose the nature
of the case against the Respondent. Everyone has a right to
know what they stand accused of. It is not enough simply to
refer to some legal provision that has allegedly been
infringed. It is not enough to come up to someone and say
'you are accused of an offense under Section 5', or
whatever, 'of the Theft Act'. The person has the right to
know why they are accused of the offense, to know what
exactly it is of which they are accused. And if the
explanation that is given is patently inadequate--say, 'you
are accused because you look guilty', or 'you are accused
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because my watch is missing and you are here'--then the
charge must be dismissed.
Article 1 of Annex VII of UNCLOS requires the
Applicants to submit along with the notification of the
initiation of arbitration a statement of the claim and the
grounds on which it is based. And those grounds should be
specified sufficiently clearly in the request for the
establishment of the Tribunal to allow the defending party
to know the legal basis of the complaint. The Applicants
might delay proof of their allegations, and delay argument
on the legal consequences; but they cannot delay a clear
statement of what their case is. Japan is entitled to know
that at the outset.
Japan does not deny that the Applicants have
sometimes enumerated certain Articles of UNCLOS in their
exchanges with Japan. What Japan did not, and does not,
understand is what acts or omissions of Japan are being
complained of, and why. What kinds of actions or words of
Japan are thought to be in breach of its obligations of
cooperation or observation? To what facts do the Applicants
wish to apply the Articles of UNCLOS that they enumerate?
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The Applicants' case is vague and elusive, if not
positively evasive, in this respect. A/NZ cannot simply
allege that there is a disagreement with Japan over the EFP
proposal and make vague references to certain Articles of
UNCLOS. The Statement of Claim should have indicated
precisely what the case against Japan is, if it was to
disclose a cause of action in respect of which this Tribunal
can determine whether or not it has jurisdiction.
Undisputed facts show that the Parties continue to
impose conservation measures upon their own fishermen.
Undisputed facts show the extent to which the Parties sought
to cooperate with each other. They were locked together for
months in attempts to negotiate a compromise on the SBT
issues. Japan's analysis in its Memorial of the substantive
provisions of UNCLOS showed that there was only one basis on
which it was possible for Australia and New Zealand to
argue, in the face of this clear evidence of Japan's deep
and sustained involvement with the work of CCSBT, that Japan
had violated its UNCLOS obligations; and that was by
alleging that Japan was in some respect acting in bad faith
in these many dealings with A/NZ within the framework of
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CCSBT. But there is no indication in the Statement of Claim
of why Australia and New Zealand might think that Japan was
acting in bad faith. There is no indication of any episodes
or contexts or times or periods or persons that they had in
mind. We know that they disagree with us, as we disagree
with them; but what did we do wrong?
It would have been one thing if the Applicants had
made allegations in the SBT Commission that Japan was acting
in bad faith. There, any allegation could have been, to put
it politely, explored and addressed on the spot. But the
Applicants have chosen to push Japan straight into judicial
proceedings without even the consultations required by
UNCLOS Article 283. Japan has had no opportunity to ask
them to explain themselves before they signed and sent off
the Statement of Claim that defines the nature and limits of
this case. How could Japan even start to adduce evidence of
its good faith if it does not know why it is alleged that it
has acted in bad faith? There is nothing in the Statement
of Claim to indicate precisely what the complaint against
Japan is.
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This failure to identify a cause of action goes
directly to the questions of jurisdiction and admissibility
with which we are now concerned. It is not simply a matter
of Australia and New Zealand not proving their case.
Australia and New Zealand do not even state their case.
This is why Japan considers this Application to be
an abuse of process. Australia and New Zealand pointed out
in paragraph 187 of the Reply that Japan has not invoked
UNCLOS Article 294 in its submission that the Application
should be rejected. There is an obvious reason for that.
Japan does not accept that the provisions of UNCLOS Part XV,
Section 2, among which Article 294 is to be found, apply to
the present dispute. That is the whole point of Japan's
submissions regarding the jurisdiction of this Tribunal.
Let me turn finally to the question of the
mootness of this dispute, and although it comes last, an
innocent onlooker might well consider that it should be the
beginning and the end of these proceedings.
Mr. Yachi explained at the beginning of these
submissions that Japan has now accepted a catch limit of
1,500 tons on its EFP. That is the exact figure, 1,500
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tons, proposed by Australia last year. The circumstances of
the proposal and of Japan's acceptance of that proposed
figure were described in detail by Professor Ando.
All three parties to these proceedings have now
accepted a 1,500 MT EFP catch limit. Japan has nevertheless
explained in detail its reasons for challenging the
jurisdiction of this Tribunal, not because it believes that
there is any longer a dispute to settle, but because of the
disturbing implications, extending far beyond CCSBT, of the
suggestion that the dispute settlement provisions in
treaties relating to the law of the sea are somehow
overwritten by UNCLOS. Japan wished to explain why it
considers this proposition to be incorrect and to place its
views clearly on the record.
As I have said, Japan considers that with the
disappearance of the differences over the level of the EFP
catch limit, this case has become moot.
The Applicants' Statement of Relief Sought appears
at paragraph 69 of their Statement of Claim, and that is set
out at Tab In of the binder. Apart from the request that
Japan be ordered to pay the Applicants' costs (and the
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Applicants will confirm to the Tribunal that they have
agreed to abandon this request) there are two subparagraphs
dealing with the relief sought.
The first subparagraph asks for a declaration that
Japan has breached its obligations under UNCLOS Article 64
and 116 to 119, and that subparagraph has five sections, (a)
to (e). You have the text there, and In will not read them
out; but you will see that paragraphs (a), (b), and (c),
insofar as their precise meaning can be discerned, all
center upon complaints that Japan is taking an EFP catch
above the level of the national quotas agreed in CCSBT for
the year 1997. But what do those complaints amount to?
There is no provision either in CCSBT or in UNCLOS
that could conceivably bind Japan to obtain the approval of
the Applicants for its high seas fishing. The only possible
basis for any complaint is that there are scientific
arguments that could be made out in favor of imposing a
lower TAC. In have already made the point that any such
argument would be a matter of fisheries policy and not law.
And now that the parties have agreed upon a level of catch
that can be taken without unacceptable risk to the SBT
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stock, there is no basis whatever, even in fisheries policy,
for the Applicants' complaint.
Similarly, the complaint under Section (e),
referring to the precautionary principle, is moot now that
all three parties are agreed upon an acceptable catch level.
And the complaint under Section (d), that Japan has failed
to cooperate with the Applicants, who claim that they have
cooperated fully with Japan, is simply vacuous. It is an
extraordinary claim that a State that has participated fully
in all the meetings that the Applicants have participated in
can be said to have been not cooperating. On the face of
it, it doesn't make any sense at all; and some further
explanation is called for, but there is none. This claim
doesn't even begin to get off the ground.
In short, all the grounds upon which the Statement
of Claim rests have been rendered moot by the acceptance by
all three parties of a 1,500-ton EFP catch limit. There is
no dispute now in existence.
Sub-paragraph 2 of paragraph 69 of the Statement
of Claim, which is also in the binder, is concerned with the
specific relief sought. It contains four sections.
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Section (b) asks that Japan be ordered to
cooperate and negotiate in good faith with a view to
agreeing future conservation measures. Mr. Yachi has given
to this Tribunal an undertaking to cooperate and negotiate
in good faith. That should not have been necessary, as
Japan has throughout the history of CCSBT considered itself
as bound by such duties. Nonetheless, according to the
well-established jurisprudence of the International Court,
that undertaking, given to the Tribunal by the Agent for the
Government of Japan, has resulted in a legal obligation
resting upon Japan that is identical with the specific
relief sought here. The Tribunal is now being asked simply
to reiterate an obligation that already binds Japan.
Sections (c) and (d) relate to Japanese catch
levels. Mr. Yachi has also addressed these matters in his
speech. Japan is committed to observance of the 1,500 MT
limit on its EFP, the very figure adopted by Australia.
That removes all disagreement under Section (c). Section
(d), as you will see, was a provision aimed at the 1999
catch and current catch, and Japan has undertaken a
commitment to pay back all excess EFP catches above the
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1,500 MT limit. And, it should be recalled, Japan has also
committed itself to a reduction in its overall catch limits
if the results of the EFP should show that this is necessary
to safeguard the SBT stock.
Indeed, In should say parenthetically that there
is a real danger in this case in losing sight of the fact
that it is Japan, as the largest fisher for SBT and by far
the largest consumer of SBT, that has the strongest interest
in ensuring the survival of a healthy SBT stock. It is
incomprehensible that anyone should suppose that Japan would
willingly see SBT fished to extinction within the next few
years.
Japan's wholehearted commitment to the 1,500-ton
EFP catch limit cannot be stressed strongly enough. It is a
lower limit than Japan thought was desirable, but Japan has
accepted it. And let me spell out plainly that even if this
case should proceed to a merits phase, and if the Tribunal
should indicate that Japan is free to determine its own high
seas SBT catch unilaterally on the basis of its own
interpretation of the scientific data, Japan will adhere to
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the 1,500-ton limit for its EFP catch for the remaining two
programs.
In have not yet referred to Section (a) of
paragraph 69(2) of the Statement of Claim. And there you
will see that the Applicants seek an Order that Japan shall
refrain from authorizing or conducting any further
experimental fishing for SBT without the agreement of
Australia and New Zealand.
It is perfectly true that Japan has made no such
commitment; nor will it do so. Japan can see not a single
shred of evidence, nor even any attempt to argue, that
Australia and New Zealand have any legal right to demand
that Japan may engage in experimental fishing only with
their approval. That, it might be said, is a matter for the
merits phase; and therefore, even though the rest of the
case is moot, there is here a legal question that could be
put before the Tribunal, but that is not so.
First, the Applicants give no indication whatever
of why they suppose that this extraordinary claim might have
any color of legality at all about it. Is there anything,
anywhere, in CCSBT, or even in UNCLOS, that might lead one
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to suppose that there is even a semblance of an arguable
case in favor of the existence of a veto over Japanese
experimental fishing on the high seas in favor of two of the
half-dozen States that fish for SBT? There is not. Nor, to
their credit, do the Applicants pretend that there is: the
Statement of Claim identifies no ground whatever upon which
this remarkable suggestion might be based.
Moreover, this petition is, in the words of the
Statement of Claim itself (Para. 69(2)), a "consequence of
the aforesaid breaches of UNCLOS." But if there are no
breaches of UNCLOS left to support the complaint, as Sir Eli
has argued, there is nothing upon which this petition can
hang--nothing of which it can be a consequence.
In the Nuclear Tests cases, the ICJ said this:
"The Court, as a court of law, is called upon to resolve
existing disputes between States...The dispute brought
before it must therefore continue to exist at the time when
the Court makes its decision. It must not fail to take
cognizance of a situation in which the dispute has
disappeared because the object of the claim has been
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achieved by other means." (ICJ Reports 1974, at 253, para.
55)
The Court held that it was proper for it to
decline to exercise its jurisdiction in circumstances where,
in the words of the Northern Cameroons' judgement, "There
are circumstances that have arisen which render any
adjudication devoid of purpose." (ICJ Reports 1963, at 38,
para. 58)
And the International Court wisely observed that
"While judicial settlement may provide a path to
international harmony in circumstances of conflict, it is
nonetheless true that the needless continuance of litigation
is an obstacle to such harmony." (Ibid.)
There is no current dispute in existence. Nor can
it be said that there is any merit in this Tribunal
proceeding to rule upon the question whether or not there
had been some breach of legal obligations in the past. It
has been explained why, in the submission of the Government
of Japan, the Statement of Claim does not even make out a
triable case that there might have been such a breach. But
even if one supposes that there had been such a breach, what
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value would a decision of this Tribunal have? All the
remedial action canvassed in the Applicants' prayer for
relief, with the exception of their bizarre suggestion that
they be given a veto over all Japanese experimental fishing
for SBT on the high seas, turns on the question of the EFP
catch limit; and on that there is now no dispute.
There was a real controversy between the Parties,
but it was a scientific controversy. Australia, Japan and
New Zealand agreed in CCSBT how such controversies would be
settled. That procedure is based on negotiation and, if
that fails, on agreed references to arbitration or to the
ICJ or other means of dispute settlement. That is the
procedure that the Applicants were and are bound to follow.
That procedure was strongly advocated by Japan
because Japan foresaw that disputes arising under CCSBT were
likely to be of a nature that is not susceptible of legal
answer or judicial settlement. And this is precisely such a
dispute. For this reason, too, Japan respectfully submits
that this Tribunal would have been obliged to decline to
hear this case, even if the Tribunal were to have had
jurisdiction in respect of it.
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But the inescapable fact is that the substance of
the controversy underlying this case has disappeared. It
disappeared completely, in March, when Japan accepted the
1,500 MT EFP catch limit suggested by Australia. The
Statement of Claim specifies no remaining triable issue
between the Parties to this case. Accordingly, in the
respectful submission of the Government of Japan, this
Application should be dismissed.
With that, In bring to a close my own part of the
submissions of the Government of Japan.
I shall not attempt to provide a comprehensive
summary of Japan's case. However, In do wish to emphasize
that there are four separate and independent grounds on
which Japan submits that the Tribunal should bring this case
to an end.
The first is that the case has become moot. The
declaration by Japan that it agrees to a limit for the EFP
catch of 1,500 MT eliminates the difference between the
Parties that gave rise to this dispute.
The second is that the claims made by the
Applicants do not in any event amount to a dispute
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concerning the interpretation or application of UNCLOS,
which is the sole basis on which this Tribunal could have
jurisdiction. The dispute concerns the implementation of
CCSBT, a matter that does not fall within the jurisdiction
of this Tribunal. And if the Tribunal were to accept the
A/NZ argument that UNCLOS Part XV procedures may be applied
to any matter falling within the scope of UNCLOS, a host of
treaties, which do not contain any dispute settlement
provisions or which contain non-binding provisions, would,
in an entirely unforeseen and unacceptable manner;, be made
subject to compulsory dispute settlement.
The third ground is that, in the unlikely event
that the Tribunal should find that UNCLOS Part XV procedures
are applicable, the preconditions laid down in Part XV for
recourse to this Tribunal have not been satisfied.
And the fourth ground is that the dispute is not
admissible because the actual issues disclosed in the
Statement of Claim are not legal questions, but matters of
scientific judgement, not susceptible to legal decision.
Having regard to all the foregoing written and
oral statements, the Government of Japan submits that this
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Tribunal should adjudge and declare, first, that the case
has become moot and should no longer be continued;
alternatively, that the Tribunal does not have jurisdiction
over the claims made by the Applicants in this case;
alternatively, that the claim is not admissible.
Mr. President and distinguished members of the
Tribunal, that concludes the submissions by the Government
of Japan in this first round of these hearings. On behalf
of the Government of Japan, In thank you very much for your
attention and for your patience.
PRESIDENT SCHWEBEL: Thank you so much, Professor
Lowe. The Tribunal wishes to thank the Agent and counsel of
Japan for today's very stimulating presentations.
We shall now adjourn and look forward tomorrow
morning to the presentations of the Agent and counsel of
Australia and New Zealand.
Thank you so much.
[Whereupon, at 6:33 p.m., the proceedings were
adjourned, to reconvene at 10:00 a.m., Monday, May 8, 2000.]
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