Academic journal article Melbourne University Law Review

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

Academic journal article Melbourne University Law Review

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

Article excerpt

I INTRODUCTION

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

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

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

The analysis in this case note is divided into three parts. Part II summarises the main factual and legal background to the SBT Case and argues that the ITLOS Order was correct in its finding that the Tribunal would prima facie have jurisdiction to hear the dispute. Part III examines the case itself. First, it considers the parties' arguments. Second, it assesses the Tribunal's decision and argues that the Tribunal used a three-pronged policy instrument -- termed `Poseidon's Trident' -- in reaching its conclusions. The majority's findings are critiqued and it is argued that the majority based its holding of no jurisdiction on only two of the trident's three policy prongs, namely `positivism' and `caution'. Then the dissent is examined and is seen to have been influenced predominantly by the last of the policy prongs, `clarity'. It is argued that this third prong constitutes a sensible policy ground for assessing jurisdiction, and should have been a guiding force in the majority's decision-making process. Part IV considers the implications arising from the Tribunal's three-pronged policy instrument and from its decision that it had no jurisdiction. First, the implications for UNCLOS interpreters (lawyers and adjudicators) are addressed, with particular reference to the relationship of UNCLOS to the 1995 Straddling Stocks Agreement. (11) Second, implications for the development of fisheries management are suggested. Finally, the implications for the role of UNCLOS tribunals are considered and it is argued that this Tribunal, while having a function in encouraging the parties to settle the dispute themselves, could have played a more important part in perpetuating the rule of law. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.