A five-member international arbitral tribunal has decided that it lacks jurisdiction to decide the merits of a dispute between Australia and New Zealand, on the one hand, and Japan, on the other, over the fishing of southern bluefin tuna. It accordingly revoked provisional measures - an interim injunction - that had been imposed on Japan by the International Tribunal for the Law of the Sea on August 27, 1999 that enjoined a Japanese experimental fishing program for southern bluefin tuna.
The award was announced by the World Bank's International Centre for Settlement of Investment Disputes, which administered the arbitration at the request of the parties. The President of the Tribunal was Judge Stephen M. Schwebel, a former President of the International Court of Justice; its other members were Judge Florentino Feliciano, Justice Sir Kenneth Keith, Judge Per Tresselt and Professor Chusei Yamada.
The three States have been in dispute over whether southern bluefin tuna, a valuable migratory species of tuna that ranges over southern seas near the Antarctic and is prized in Japan for sashimi, is recovering from a state of severe overfishing. In 1993, Australia, Japan and New Zealand entered into a convention on the conservation of southern bluefin tuna establishing a commission to set a total allowable catch and take other measures to promote the recovery of the stock. That convention has a provision for the settlement of disputes arising under it which permits the parties to choose whatever means of peaceful settlement they prefer. Australia, Japan and New Zealand are also parties to the United Nations Convention on the Law of the Sea of 1982, which contains provisions for compulsory settlement of disputes arising under it, including by arbitration. That Convention has provisions bearing on the fishing of migratory fish species including southern bluefin tuna. The Arbitral Tribunal which has just ruled was established pursuant to the Law of the Sea Convention.
The main issue in dispute before the Tribunal was whether or not it had jurisdiction over the merits of the dispute. Japan argued that the dispute arose solely under the 1993 Convention, and that accordingly it could not be compelled to arbitrate the merits of the dispute. It contended that a provision of the Law of the Sea Convention that entitles parties to avoid compulsory dispute settlement if another treaty to which they are parties excludes it governed this case.
The Tribunal rejected Japan's claim that the dispute solely concerned the 1993 Convention, holding that a dispute could arise under more than one treaty and did in this case. However, by a vote of 4 to 1, the Tribunal sustained Japan's contention that a provision of the 1993 Convention did exclude compulsory jurisdiction over disputes arising both under it and the Law of the Sea Convention. It held that in this case the same States were grappling not with two separate disputes but what in fact is a single dispute arising under both Conventions, and that to find that there was a dispute arising under the Law of the Sea Convention which is distinct from the dispute that arose under the 1993 Convention "would be artificial". In the Tribunal's view, the meaning and intent of the disputes settlement provision of the 1993 Convention was to exclude procedures for compulsory settlement of the Law of the Sea Convention. Accordingly, the Tribunal unanimously revoked provisional measures in force that enjoined Japan from conducting an experimental fishing program for southern bluefin tuna. At the same time, the Tribunal declared that revocation of provisional measures did not mean that the parties may disregard the effects of those measures. It noted that the parties had narrowed the gap between them, and that Japan had offered mediation or arbitration under the 1993 Convention. It emphasized that the prospects for a successful settlement of the dispute will be promoted by the parties' abstaining from any unilateral act that may aggravate it.
Judge Sir Kenneth Keith appended a separate opinion that maintained that the 1993 Convention did not exclude compulsory arbitration under the Law of the Sea Convention.
The full text of the Award is posted on the website of the International Centre for Settlement of Investment Disputes.