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A Right Decision? — Reflections On The Legal Correctness Of The Southern Bluefin Tuna Arbitral Award

Source: U. O. OKOCHA ESQ.
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INTRODUCTION
The Southern Bluefin Tuna Arbitral Award is twenty years old; in the year 2000, there was the birth of the first arbitral tribunal constituted in accordance with Annex VII which was set up in line with Article 287 of the United Nations Convention on the Law of the Sea for the determination of a dispute regarding the oceans. Well, by oceans, it was an international arbitration over matters of protection and preservation of a migratory fish and its marine environment. It had as applicants, New Zealand and Australia, on the one hand, and Japan on the other hand serving as defendants.

International Arbitration enthusiasts, professors and attorneys in this regard are most definitely familiar with the legal issues raised in this arbitral award. One reality is that some controversies surrounding the decision of the arbitral tribunal survived the 4-1 Award in favour of Japan on matters of jurisdiction. The events will be relived in this paper and the legal issues, buttering the old gist. A principal thing is that the writer absorbed and agrees with the ratiocination of the tribunal on every issue – issues will be reproduced and this paper will attempt a legal appreciation. This paper will offer analyses of two principal Conventions – the 1993 Convention for the Conservation of Southern Bluefin Tuna (hereafter the 1993 Convention or CCSBT) and the United Nations Convention on the Law of the Sea (hereafter designated as UNCLOS) – to reach a finding almost identical with that of the arbitral tribunal.

AREAS SHROUDED IN CONTROVERSY
Just as mentioned above, the Southern Bluefin Tuna Arbitral Award did not get a universal cheer. The controversies in the Award flowed from the following issues:

1. Whether the Arbitral Tribunal erred in law when it declined jurisdiction to hear the dispute on its merit?

2. Whether the Arbitral Tribunal erred in law when it set aside the Provisional Measures granted by the International Tribunal for the Law of the Sea in favour of the claimants?

The two legal issues form the focal point of the Award. We will get to appreciate the substrata of both issues in the later paragraphs. In the meantime, let us absorb a succinct expository of the Southern Bluefin Tuna (hereafter, sometimes designated as “SBT”) dispute.

BACKGROUND TO THE SBT PROCEEDINGS
Southern Bluefin Tuna is a migratory species of pelagic fish that is included in the list of highly migratory species set out in Annex 1 of UNCLOS. Southern Bluefin Tuna range widely through the oceans of the Southern Hemisphere, principally the high seas, but they also traverse the exclusive economic zones and territorial waters of states, notably Australia, New Zealand and South Africa. They spawn in the waters south of Indonesia. The main market for the sale of Southern Bluefin Tuna is in Japan, where the fish is prized as a delicacy for sashimi.

The parties agreed that commercial harvest of Southern Bluefin Tuna began in the early 1950s and that, in 1961, the global catch peaked at 81,000 metric tons. In the early 1980’s, the SBT stock had been greatly overfished and this birthed the agreement among New Zealand, Australia and Japan to manage the catching. This was in 1982 and the urgency was due to an estimated decline in parental stock to 23-30% of its 1960 level.

The Total Allowable Catch (hereafter, sometimes designated as “TAC”) for SBT was introduced in 1985 initially set at 38,000 metric tons. It took four more years for the trio state parties to agree on a TAC of 11, 750 tons with national allocations of 6, 065 tons to Japan, 5, 265 tons to Australia and 420 tons to New Zealand. The sharing formula was in tandem with their respective needs and Japan had the greatest cut because it was unarguably the largest harvester of the Southern Bluefin Tuna.

In 1993, the Parties to the dispute concluded the Convention for the Conservation of the Southern Bluefin Tuna. This was aggravated by the further decrease in the parental stock of the pelagic fish in the order of 7-15% of its 1960 level. It remained fishy that the fishes in the ocean remained unmaintained that at 1998, there was still the crisis on how best to fulfil Article 3 of the 1993 Convention which bordered on the obligation of the Parties to conserve and optimally utilize the Southern Bluefin Tuna. The shift in perspectives saw New Zealand and Australia blaming Japan for unilaterally running an Experimental Fishing Program (hereafter, EFP) which breached Article 4 of the 1993 Convention on “Non-prejudicial circumstances” as well as Articles 5 & 7 on “Parties obligation to take necessary steps to ensure enforcement of CCSBT” and “Parties entitlement to a single vote” respectively. Japan on the other hand felt the EFP was the narrow road trusted by scientific research to conserve the marine environment and save the pelagic fish from migrating to some other exclusive economic zones. The other disagreement was with respect to Japan’s cravings for an increase in the Total Allowable Catch with a consequential increase in its national allocation – Australia and New Zealand cried foul especially as the Commission set up for the conservation of the Southern Bluefin Tuna had not, since the last time of allocating catch, survived the impasse. The applicants cried out for the maintenance of status quo and the dire need to conserve the fish which was now seriously under threat.

Negotiations were arranged by Australia and New Zealand but Japan refused to give up on its Experimental Fishing Program even though it dropped its clamour for a 6000 increment in the TAC but not the quest for extra 3000 metric tons to its national allocation. Japan came through the back door of mediation but the condition precedent set by Australia and New Zealand that Japan suspends the EFP before further talks could be entertained, ensured that the dispute stayed afloat till 1999. It was at that point that New Zealand and Australia felt the need to evoke relevant provisions of UNCLOS particularly section 2 which dwelt on the compulsory procedures. In a bid to evoke, as choice of procedure, arbitral tribunal under Annex VII, New Zealand and Australia, the applicants, tabled the matter before the International Tribunal for the Law of the Sea for a grant of provisional measures before the constitution of an arbitral tribunal under Annex VII. The provisional measures, in line with Article 290 (5) UNCLOS, was the applicants way of temporarily forestalling Japan’s pursuance of the EFP. Fortunately for the applicants, they secured the interdiction. ITLOS reasoned that the applicants’ claims were based on law than scientific appreciation; it was reasoned that Article 64 UNCLOS was violated by Japan at the point where it went about the EFP without the cooperation of the applicants. ITLOS, in its considerada, maintained that the national allocations remained as was granted by the Commission. ITLOS was persuaded by the applicants’ submissions particularly the provisions of UNCLOS relied on vide Articles 64, 116, 117, 118, 119, 290 (5) – all tending to establish the failure of Japan to cooperate with the applicants to conserve living resources of the high sea.

ARGUMENTS OF AGENTS AT THE ARBITRAL TRIBUNAL

It should be understood that the effect of the provisional measures vide Article 290 (5) UNCLOS was to merely protect the marine environment, the migratory species and the TAC as agreed by the parties before the Commission for the Conservation of Southern Bluefin Tuna. It was a temporal measure until the formal set-up of an arbitral tribunal under Annex VII to determine the case of the parties. It was granted by ITLOS under the impression that the arbitral tribunal to be set up had jurisdiction to hear the case on its merits.

Upon the establishment of the arbitral tribunal, the main positions of Japan were thus:

1. The Provisional Measures granted by ITLOS should not have been because ITLOS did not have jurisdiction to interdict in the first place.

2. The arbitral tribunal lacked jurisdiction to determine the dispute as it was a matter under the 1993 Convention and not a breach of UNCLOS.

3. UNCLOS cannot be evoked notwithstanding the preamble of the 1993 Convention which upholds or live by the words of UNCLOS. This is especially on the premise that while UNCLOS was concluded in 1982 and the CCSBT in 1993, UNCLOS did not come into force until 1994 and was not ratified by all three of the Parties to these proceedings until 1996. Thusly, only CCSBT was the applicable law as it alone regulated relations among the three states for some 26 months.

4. The 1993 Convention introduced optional measures in the settlement of disputes. It will amount to a lack of understanding of practice and procedure to evoke UNCLOS, a framework convention, over the 1993 Convention, an implementing convention.

5. The arguments canvassed by the applicants were already moot since the applicants had once agreed to consider the EFP at a certain time before choosing compulsory procedures.

6. In the alternative, assuming but not conceding that the arbitral tribunal had jurisdiction to entertain the matter, the claims of Australia and New Zealand were unfounded as they were more of scientific appreciation than law. In fact, the consideration of Article 283 UNCLOS evinces that parties to a dispute shall proceed expeditiously to an exchange of views or by any other peaceful means. Where this is read with Article 16 of the 1993 Convention, the applicants did not exhaust the dispute settlement mechanisms before resorting to compulsory procedures.

While it is agreed that this does not constitute all of Japan’s submissions, the above points capture the main events and areas of controversy. The submissions of New Zealand and Australia were also lengthy in numberings. The applicants argued grounds like parallelism, precautionary principle, instances for evoking compulsory procedures, the presence of jurisdiction of both ITLOS and the arbitral tribunal, and the fact that the statement of claim was not moot – these will be further buttressed in the next subhead.

The arbitral tribunal was of the view that it could not dabble into the merits of the case as it lacked jurisdiction and by all necessary implication, it relied on Article 290 (3) UNCLOS to revoke the provisional measures issued by ITLOS as it was of the view that ITLOS was also without jurisdiction. Besides, the lack of jurisdiction of the arbitral tribunal ordinarily meant that all earlier decisions in line with the main prayers of the applicant would be upturned.

ANALYSES OF TWO LAWS AND THE ARBITRAL AWARD
1. CCSBT and UNCLOS could run together. In fact, it is commonplace to have Parties have treaty obligations in different treaties allowing for the possibilities of relatedness and application of treaties Parties belong to interphase in a particular Convention. Indeed, Japan was on the wrong side of the law to have put out such contrary argument. The fact that CCSBT served as an implementing framework of UNCLOS in this regard did not go to treat UNCLOS as a matter of avoidable surplusage.

2. Agreed, the argument of Japan that only the CCSBT was applicable law due to UNCLOS coming into operation a year after their 1993 mutual international agreement to conserve the SBT with their eventual ratification of the later law in the year 1996 is an unforgivable submission. The preamble of the CCSBT clearly identified with the tenets of UNCLOS; a wider reading of the preamble and Article 5 CCSBT on the imposed duty of Parties to take necessary steps to ensure enforcement of the Convention means that the 1993 Convention opened its doors to the relevant provisions of UNCLOS. As a matter of parallelism, both laws could run effectively albeit respecting the overlaps and qualifications embedded in both laws. It is to be added that Japan’s argument of lex posterior and lex specialis being enough to discharge and submerge the obligations under UNCLOS was not together necessary as it only applies where there is a matter of conflict in two laws. The SBT arbitral award did not border on conflicts of laws but on appreciation of parallelism of both Conventions.

3. The argument of Japan that the matter was moot as there were talks among the Parties at some point to agree unanimously on the EFP, will still be a shaky premise. To even treat the well canvassed points of the applicants as one of scientific appreciation than law was no more than recklessness. It is not moot because the heart of the applicants’ points before the arbitral tribunal dwelt particularly on the quality of the program than the quantity of tonnage. It is not moot that the applicants saw to conserve the unanimously identified dangers of the SBT on the high sea. It is more a matter of law than scientific and to the writer’s mind it is unfounded to cleave to Japan’s argument especially as the areas of scientific appreciation were imprinted in relevant areas of UNCLOS of which they were Parties to. The law is itself science and the mere fact that the applicants disagree on the scientific research of Japan in running the EFP does not outweigh the lengthy legality of the statement of claim.

4. The raised brows suggesting unhappiness with the arbitral tribunal’s decision to rely on some other treaty to reach a finding should not cause further unrest in one’s state of mind. The Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks were used for the sole purpose of comparison with CCSBT and UNCLOS and no more. The reliance on Article 30 (3) of the Vienna Convention on the Law of Treaties was used to agree to the similar wording in Article 31 UNCLOS. If the challenge in appreciating the harmless use of these Conventions are still unclear, does it mysteriously become clear to hold and justified to hold on to another law during settlement and interpretation of disputes when the applicants evoked Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) in the establishment of the tribunal’s jurisdiction over the dispute? Is not the relationship between a Convention and Case Law, the presence of law?

5. The writer opines that although Japan was in error to have submitted that the applicants failed to exhaust the different modes of settlement under Article 16 of the 1993 Convention, it still did not mean that the arbitral tribunal had jurisdiction to consider the merits of the dispute. The problem with jurisdiction is that no matter the beauty of the submissions or urgency in the matter, the arbitral tribunal’s hands will remain tied. The Award was in order and this should be agreed by the international community when we consider the importance of “agreement of parties”. While a State Party can request for compulsory procedure it may be unable to do so when we consider the construct in Article 287 (4) UNCLOS which has that “If the parties to a dispute have accepted the same procedure for the settlement of dispute, it may be submitted only to that procedure, unless the parties otherwise agree.” The take home is that since the parties did not agree to resolve their disputes under compulsory procedures in section 2 of Part XV UNCLOS, the arbitral tribunal could not be constituted. It means that Article 16 CCSBT ought to be respected as the Parties are under obligation to honour their vows under the implementing Convention. Since the wordings of Article 16 CCSBT captures words like “peaceful settlement of their choice”, “parties shall consult among themselves with a view to having the dispute resolved”; paragraph 2 of Article 16 CCSBT has that where the dispute is not resolved, the matter shall be referred for settlement at the International Court of Justice or arbitration although with the secured consents of all the State Parties. It further stressed that failure to reach agreement on reference to the International Court of Justice or arbitration shall not absolve the parties from the responsibility of continuing to seek to resolve it by any of the peaceful means in paragraph 1 – in that paragraph, consent is included and exploration into the advent of compulsory procedures under section 2, Part XV of UNCLOS was excluded. The understanding of parallelism helps in the resolve that two treaties are to complement each other and a framework Convention should not become a blindfold to the clarity of terms in an implementing Convention. It is true that strenuous efforts were made among the parties to settle the disputes to possibly satisfy the provision of exhaustion of local remedies vide Article 295 UNCLOS but Article 283 UNCLOS expects parties to expeditiously exchange views and this would have seen them agreeing on the dispute settlement method. The clear interpretation of Article 281 UNCLOS is that Part XV in its entirety (particularly Section 2) will be excluded if the implementing treaty of the parties excludes further procedures. The question whether further procedures were excluded under Article 16 CCSBT has been answered above. It all points to a general understanding that UNCLOS is not a comprehensive regime – it is not imposing on Parties as Parties can freely choose their own procedures in affairs of the sea. The Award captured section 3 of Part XV, UNCLOS which serves as limitations to the compulsory procedures vide section 2 – it is the opinion of this writer that a combine reading of Articles 16 and 298 of CCSBT and UNCLOS respectively, means that the omission of the state parties to make written declarations to be free from the shackles of compulsory procedure will remain insignificant if we appreciate the relation of UNCLOS with other conventions and international agreements vide Article 311 UNCLOS – it has that UNCLOS shall not alter rights and obligations of the State Parties which arise from other international agreements incompatible with UNCLOS. It was not in dispute that CCSBT and UNCLOS were not in conformity and this takes us to the import of Article 16 (3) CCSBT which stresses that where it is a matter of arbitration, the procedure enshrined in Annex V of CCSBT governs. Indeed, compulsory procedures were never contemplated and while UNCLOS was preserved in the preamble of CCSBT, arbitration process was to be governed by Annex V of CCSBT contrary to the submission of claim before the arbitral tribunal under Annex VII of UNCLOS. The tribunal lacked jurisdiction.

6. The provisional measure granted by ITLOS was rightly set aside. The provisional measures were to the extent that the arbitral tribunal to be set up by the parties had jurisdiction to hear the case on the merits. Given that no such jurisdiction was in place, Article 290 (3) UNCLOS was rightly utilized in extinguishing the measure. While it is regrettable that the migratory Tuna may move to other Exclusive Economic Zones, the precautionary principle will not survive if placed side by side with the big question of jurisdiction. ITLOS was thus in error to have declared that the arbitral tribunal under Annex VII, UNCLOS had jurisdiction to determine the case on its merits. The greater precaution was always the satisfaction of which dispute mechanism had jurisdiction ab initio.

SUMMARY
This dispute settlement in 2000 will continue to be controversial especially when persons consider the legal effect of Article 297 UNCLOS as it affects this particular proceeding. However, it is advised that in examining the entire proceedings, one takes close observation at the main questions the arbitral tribunal had to answer. The issue of jurisdiction cannot be waived no matter what – the tribunal could not even go about the resolution of the dispute on the basis of ex aequo et bono as the arbitral tribunal should settle claims based on the law as defined by the Parties. It was the case that all the Parties were open to dispute settlement under CCSBT which meant that the cravings for compulsory procedure were premature, albeit inexistent. The controversies are better preserved in the famous South China Sea Arbitration because submissions of technicalities in the place of justice will augur well in that arbitral award than in the Southern Bluefin Tuna Arbitral Award.