"Tuna Case A Landmark" Says Upton
Hon Simon Upton
18 August 1999
"TUNA CASE A LANDMARK" SAYS UPTON
"The key to our landmark joint New Zealand and Australian tuna fishing case currently underway this week at the International Law of the Sea Tribunal in Hamburg, Germany, is that it challenges the Japanese claim to be increasing their Southern Bluefin Tuna catch for scientific reasons" said Associate Minister of Foreign Affairs Simon Upton today.
"As our joint submissions make very clear, the Southern Bluefin Tuna stocks (SBT) are extremely vulnerable, and we have made lengthy attempts to negotiate under the 1993 Convention between Japan, Australia and New Zealand, which governs the management of this fishery on the high seas.
"But these negotiations have not been successful and when the Japanese again this year unilaterally announced their decision to go ahead with a significantly increased take of tuna for supposedly scientific reasons, we decided to pursue international litigation and take the matter to the International Law of the Sea Tribunal for a binding ruling", Mr Upton said.
Despite Japanese attempts to deny the jurisdiction of this international tribunal, the joint submissions by New Zealand and Australia presented strong legal argument that the 1993 Convention between the three countries in no way overrode the fundamental rights and obligations of the United Nations Law of the Sea Convention of 1982 to cooperate in the conservation of this species.
"The essence of the dispute is that the Japanese, who already enjoy the largest single share of quota for Southern Bluefin tuna, have unilaterally decided to increase their own allocation by 30%, or 2000 tonnes, under the guise of an Experimental Fishing Programme, an increase which is five times the total allowable catch take for New Zealand" Mr Upton said.
"We have repeated our view to the Tribunal that there are grounds for a collaborative, sensible and scientifically rigorous experimental programme to answer a lot of uncertainties about the size, maturity and recruitment rates of this very valuable resource, but any extra catch must have the scientific benefits very carefully assessed against the increased risks to a fishing stock already described as "severely depleted", Mr Upton said.
"The submissions also make clear that while both parties agree that the current breeding stocks are in a serious state and well below the stated goal of the parties to the 1993 Convention to restore them to 1980 levels, there are strong differences over the rates of recovery of these stocks.
"Japan claims that the tuna stocks are recovering, whereas our joint submissions note that in the best case scenario Japan is helping to put off any actual recovery and at worst, its actions in frustrating the conservation goals for Southern Bluefin Tuna might cause or contribute to a further stock collapse" Mr Upton said.
"This is a landmark case. The way in which this case is resolved could serve as a signpost for the plight of international fisheries as a whole. As I have pointed out previously, the Food and Agriculture Organisation have reported that 60-70% of all fishing stocks require urgent intervention to control or reduce fishing to avoid the further decline of fully exploited resources and to rebuild depleted stocks", Mr Upton said
The judges hear the Japanese arguments and the rebuttals of both sides this week and are expected to give their judgement about a week later.
New Zealand and Australia are asking the tribunal to grant what is in effect an interim injunction requiring Japan to immediately cease its unilateral fishing experiment and to restrict its overall catch to the previously agreed national quotas it has already agreed to and to take a precautionary approach in future.
The International Tribunal for the Law of the Sea (ITLOS) is a specialised world court established by the United Nations Convention on the Law of the Sea, which was adopted in 1982. This Convention, often referred to as the "constitution of the oceans", establishes a comprehensive legal framework to manage the oceans. It establishes rights and duties of states, including for the management of fish stocks through conservation and cooperation.
ITLOS was established in 1996 and has heard two cases to date, neither of which considered fisheries issues. This is the first time New Zealand has taken a case to ITLOS. New Zealand and Australia have jointly applied to the court to seek orders placing restraints on the manner in which Japan is conducting an experimental fishing programme for southern bluefin tuna.
New Zealand and Australian Government representatives and lawyers orally presented the joint case to the tribunal on 18 August. The case was presented in a series of statements about the significance of the law of the sea, the depleted state of SBT, and the importance of taking a precautionary approach to its management. The presentations were accompanied by scientific evidence.
The Total Allowable Catch currently for Southern Bluefin Tuna is 11750 tonnes of which Japan has 6065 tonnes, Australia 5265 tonnes and New Zealand 420 tonnes. Other countries who are not part of the Convention have a take of 3000 tonnes making a total take of around 15000 tonnes. This compares to catch rates of 80,000 tonnes in the early 1960's.
New Zealand and Australia made clear their concerns about the dangerously depleted state of SBT but they also stressed the significance of this case for setting a precedent for the conservation and management of high seas fish stocks in the future. The case would help define the content of states' cooperation and conservation obligations under UNCLOS.
For further information refer: www.mfat.govt.nz/publications/discus.html