Case Brief 2 PDF

Preview

Summary

Case Brief: Southern Bluefin Tuna (New Zealand & Australia v. Japan)
...

Description

Case Brief: Southern Bluefin Tuna (New Zealand & Australia v. Japan) Fact Pattern of the Case In 1980, the total quota for southern bluefin tuna (SBT) was 40,000 tons in the early 1980s. Australian fishers caught many young tuna to produce canned meat, which accelerated depletion of the SBT stock. While  quota in tonnage was less than Japan, taking of young tunas by Australia resulted in taking much more number of tunas than Japan:

Japan then gave financial and technical aid to Australian fishery industry to reduce their catch of young tunas, while accepting to reduce its quota from 23,150 to 6,065 tons, i.e, ¼ of their original numbers. However, as stated above, the southern bluefin tuna is a severely depleted species. Australia, Japan, and New Zealand are the main areas to engage in the fishing of southern bluefin tuna. Since 1989 the total catch of southern bluefin tuna had been fixed to 11,750 tons where Japanese share was 6,065 tons. In 1989 Japan had accepted to reduce its quota, effectively reducing its fishing ground and length of fishing season to a ¼ of what it used to be. Following, no information then came about the stock situation of ¾ of Japan’s fishing ground. Australia and New Zealand attempted to follow up with Japan questioning why Japan did not remove ¾ of its fishing ground as there was no tuna to be caught in that region, ignoring the fact that Japan had shrunk its fishing ground to the appropriate cost-effective region and season. Realizing the dramatic reduction of the southern bluefin tuna, all parties signed the Convention of the Conservation of Southern Bluefin Tuna in 1994, which established that Japan, Australia, and New Zealand were to engage in appropriate measures that would recover the southern bluefin tuna population to that of the levels in 1980 by 2020. Due to differences in population in each of the territories, estimate of the probability of recovery for each country was determined as follows: Japan: 79%; Australia: 15%; New Zealand: 29%. Because of the wide differences in these percentages, scientists conducted their own research, stating that the fundamental assumption of Australia, which entailed that there was no tuna in the area in which Japan was no longer operation, was unrealistic. As such, it was decided that more research needed to be done in the ¾ region of the circumstance described above. The

below graph shows calculation in 1998 about the ratio of concurrent population of southern bluefin tuna of over 8 years in comparison to 1980 level.

Based on these signs of recovery, in 1995 Japan proposed to increase its Total Allowable Catch (TAC) by 3,000 tons. Australia and New Zealand fought this however, stating that the stock is still at risk even considering these progressive developments. Following this, Japan then decided to do a joint research program, called the Experimental Fishery Program (EFP). Through two special meetings were held on EFP, it was agreed that 1) EFP was useful for stock evaluation, 2) three nations cooperate to develop EFP timely, 3) design, objective and principle of EFP must be decided, 4) pilot EFP be carried out after September 1996, and full-scale EFP be carried out after March 1997. However, both Australia and New Zealand refused to participate in this program, believing that it was outside the framework of the Convention. As a result, Japan then decided to start the EFP program alone in 1998. As a result of the research conducted by Japan through the EFP, it was found that 1,500 tons of southern bluefin tuna in the part of old fishing ground was estimated to be 70% of the current ground where Japan had been operating since 1989. This entailed that there was tuna where Australia insisted that there wasn’t, and using the Japanese EFP data, all three nations' figures on the probability to reach the goal of recovering the stock to 1980 level by 2020 drastically increased, i.e. all figures were over 60%. Efforts to reach an agreement between parties on Japan’s research program at CCSBT continued, but the plan proposed by Australia was infeasible one. For example, under Australia’s plan, 60 ships, which were located at every 5 degrees apart, just tow nets from Cape Town (South Africa) to Tasmania for 3 months, without chasing tunas, would result in an estimated fishing of 165 tons of SBT. This method, which in practice would tow nets of tuna regardless of any were caught, gives no comparability with past data. Japan hence suggested validity of such method be first tested in small area, though no agreement was reached on behalf of Australia or New Zealand in implementing this joint research plan. In 1999 Australia and New Zealand sued Japan for violating UNCLOS to the International Tribunal for the Law of the Sea. The Legal Issue Raised by Each Party

In 1999, the countries of Australia and New Zealand came together to challenge Japan’s “experimental fishing program” for Southern Bluefin Tuna (SBT), accusing Japan of not meeting the appropriate measures it had previously agreed to in conserving the existing population of SBT. Australia and New Zealand claimed that the practice committed by Japan was inconsistent with the United Nations Convention on the Law of the Sea (UNCLOS) and the precautionary principle, breaching its obligations under Articles 64 and 116 to 119. As a consequence of these breaches of obligation, it was recommended that Japan refrain from authorizing or conducting any further experimental fishing for SBT without the agreement of both Australia and New Zealand. Furthermore, it was decided Japan should negotiate and co-operate in good faith with the two countries, acting in a shared vision of the conservation of SBT and to participate in the necessary practices that would restore SBT stocks to levels which could produce maximum sustainable yield. Awaiting decision, Australia and New Zealand further requested from the Tribunal that Japan be prescribed provisional measures that Japan immediately  cease unilateral experimental fishing and that the parties ensure that no action of any kind was taken which might aggravate, extend or render more difficult the solution of the dispute. In response, Japan argued that the Annex VII tribunal had to have prima facie jurisdiction. Prima facie  jurisdiction entails that evidence, unless rebutted, would be sufficient to prove a particular preposition or fact. In the case of Southern Bluefin Tuna, this would mean that the allegations made by Australia and New Zealand would have to concern the interpretation or application of UNCLOS alone, as Japan was accused of breaching UNCLOS obligations, and not some other international agreement. The dispute did not concern a breach of the Convention on the Law of the Sea. Secondly, it would have to be proved that Australia and New Zealand had to have, in good faith, attempted to negotiate with Japan previously in reaching a settlement that upheld the standards and obligations of UNCLOS Part XV, Section 1. This is in accordance with the exhaustive principle. As such, Japan contended that Australia and New Zealand had violated Part XV, section 1, of the Convention (in particular article 281), failing to engage in negotiations or other agreed peaceful means before submitting their disputes. Japan asserted that Australia and New Zealand had failed to satisfy both of these conditions of prima facie j urisdiction and acting in good faith to establish with Japan before prosecution in reaching a settlement in accordance with UNCLOS. As such, the Tribunal did not have the authority to prescribe any provisional measures to Japan, in accordance with Australian and New Zealand’s wishes. The Legal Issues Analyzed by the Court In determining the Southern Bluefin Tuna case, the Tribunal used the following standards to determine their ruling: ● There was no disagreement between the parties that stock of SBT is critically depleted and it at its historically lowest levels, which is cause for biological concern.

● Japan has scientific evidence that shows its criticized fishing programme will cause no further threat to the SBT population, and that this programme is needed in determining a more reliable assessment of the potential of the stock to recover. ● Australia and New Zealand maintain that scientific evidence proves that Japan’s fishing programme will continue to endanger the SBT population. ● In the views of the Tribunal, parties should act with prudence and caution to ensure that the SBT population is conserved. ● There is scientific uncertainty regarding best practices to conserve the SBT population and that there is no existing agreement as to what should be done. ● The Tribunal cannot conclusively assess the scientific data presented by each party, and so other measures must be adopted in order to preserve the rights of both parties and to protect the existing population of SBT. It was decided by the Tribunal that the Convention of the 1993, under which both parties were under obligation, did not exclude their right to invoke provisions ratified under the Convention on the Law of the Sea in regard to the conservation of the southern bluefin tuna population, nullifying Japan’s prima facie  defense. The UNCLOS and Commission for the Conservation of the Southern Bluefin Tuna (CCSBT) were intertwined, and so the case had jurisdiction to be heard. Furthermore, the Tribunal had reached the conclusion that attempts to reach a peaceful agreement and settlement between the parties before engagement of the Tribunal had taken place. However, a State Party was not obliged to to pursue procedures under Part XV of the Convention when it was concluded that the possibilities of settlement had been concluded, and as such the Tribunal was under obligation to decide whether provisional measures were to be enforced on either party. In deciding this, the Tribunal adopted the Precautionary Principle, noting that there was conflicting scientific data between Japan and Australia over accurate estimates of the damage being done to the southern bluefin tuna population and the measures needed to be adopted in order to conserve the breed. Furthermore, the Tribunal took into consideration that further catching of the SBT population would result in the violation of both Australia and New Zealand’s rights. It was also taken into account by the Tribunal that the conservation of the southern bluefin tuna was one for several biological and environmental concern. Article 290(6) was the deciding principle in this case stating that the parties in dispute must comply with the provisional members set forth under the Article. Under these considerations, it was decided by the Tribunal in a vote of 18 to 4 that “Australia, Japan and New Zealand shall ensure, unless they agree otherwise, that their annual catches do not exceed the annual national allocations at the levels last agreed by the parties.” Furthermore, in a vote of 20 to 2, that “Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a catch of southern bluefin tuna, except with the agreement of the other parties or unless the experimental catch is counted against its annual national allocation as prescribed…”

Personal Opinion of Court’s Rationale In my opinion, I agree with the Tribunal’s rationale. As we have seen consistently throughout historic and modern-day context, there are endless fishery disputes concerning catch limits and conservation of the environment and its entities. U  sing an experimental fishing program (EFP) Japan had exceeded its previously agreed limit for southern bluefin tuna (SBT), meaning that it was under obligation not to proliferate any existing biological or environmental degradation, especially without the compliance of Australia and New Zealand. In cases where States cannot reach agreement, the State that is normally competent loses its right to act alone, admitting a “right of assent” or a “right of veto.” Considering this, even though the three parties involved failed to reach an agreement on a joint experimental fishing programme, Japan had unilaterally launched one and Australia took regulatory measures against Japanese fishing vessels. Because of this, Japan had worked against the interests of the Conventions and laws that it was under obligation, considering that according to Article 64 of the UN Convention on the Law of the Sea it is noted that States “shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond t he exclusive economic zone. ” Furthermore, it is obviously difficult to develop workable policies in fishery management that appropriately and proportionately address these concerns, and as a result many cases can worsen and many more can develop. As such, legal authorities must make it a priority to create and enforce provisions that will warrant as little damage as possible, especially when there is scientific data to prove that damage has consistently been performed. Article 64 of the Convention lays down, as stated in the Order, a duty to cooperate to that end. The understanding of this case and the Tribunal’s process of decision-making is adding to what we are learning in that it shows the critical importance of cooperation and negotiation in a regional organization. In circumstances such as this, cooperation among the members of the Commission of the Conservation of Southern Bluefin Tuna is the only way for there to be effective progress in the building up of the southern bluefin tuna population....