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Dispute between Australia – New Zealand and Japan over Sothern Bluefin Tuna Case Study

August 19, 2020

Cause of Action: Australia approached  the International Tribunal for the Law of the Sea (‘the Tribunal’) ( ITLOS) to  prescribe the provisional measures specified in Australia’s dispute with Japan over Southern Bluefin Tuna (‘SBT’),pending the constitution of an Arbitral Tribunal under Annex VII of UNCLOS (‘the Arbitral Tribunal’). The dispute relates to Japan’s failure to conserve, and to cooperate in the conservation of, the SBT stock, as manifested, inter alia, by its unilateral experimental fishing for SBT in 1998 and 1999. It also included the interpretation and application of certain provisions of UNCLOS. The Arbitral Tribunal were asked to take into account, for the said reasons, the provisions of the 1993 Convention for the Conservation of Southern Bluefin Tuna (‘the 1993 Convention’) and the parties’ practice in relation to that Convention, as well as their obligations under general international law, in particular the precautionary principle. Reasons: Japan’s unilateral experimental fishing for SBT and its lack of cooperation in the conservation and management of SBT which will have the potential to cause serious prejudice to the rights of Australia; Natural environmental changes could combine at any time with the vulnerable state of the resource to cause a further and potentially highly damaging decline to the stock; The reason for requesting provisional measures is that Japan’s current and proposed unilateral actions in relation to SBT, taken in the context of a stock at historically low levels, increase the threat to that stock and undermine the disciplines of the accepted scheme for SBT management;  If not addressed by way of provisional measures, the unilateral actions of Japan have the potential to cause serious prejudice to the rights of Australia; This prejudice could not be the subject of adequate remedy in any subsequent decision of the Annex VII Arbitral Tribunal; Pending the constitution of this Arbitral Tribunal under Annex VII of UNCLOS, Australia and New Zealand, on July 30, 1999, each filed a request for the prescription of provisional measures with the International Tribunal for the Law of the Sea (“ITLOS”). Background to the Current Proceedings  Southern Bluefin Tuna (Thunnus maccoyi, hereafter sometimes designated “ SBT “) is a migratory species of pelagic fish that is included in the list of highly migratory species set out in Annex I of the United Nations Convention on the Law of the Sea. SBT 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 some States, notably Australia, New Zealand and South Africa. They spawn in the waters south of Indonesia. The main market for the sale of SBT is in Japan, where the fish is prized as a delicacy for sashimi. Grounds argued and or pleaded: It is common ground between the Parties that commercial harvest of SBT began in the early 1950s and that, in 1961, the global catch peaked at 81,000 metric tons (“mt”). By the early 1980s, the SBT stock had been severely overfished; it was estimated that the parental stock had declined to 23-30% of its 1960 level. In 1982, Australia, New Zealand and Japan began informally […]

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