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Southern Blue Fin Tuna Case

The International Tribunal hearing the case brought by Australia and New Zealand against Japan over its experimental fishing for Southern Bluefin Tuna has decided that it does not have jurisdiction in the matter.

The decision, which was handed down on 4 August, follows a hearing on jurisdictional issues held in May in Washington.

In August 1999 Australia and New Zealand obtained provisional measures in the case from the International Tribunal for the Law of the Sea (ITLOS).

Those measures precluded Japan from carrying out further experimental fishing beyond pre-existing quotas pending finalisation of the case. Subsequently, a five-member ad hoc Tribunal was established under the United Nations Convention on the Law of the Sea (UNCLOS).

Its first task was to consider whether it could exercise jurisdiction over the dispute. The Tribunal, by a majority of 4 to 1, found that it was unable to do so. Accordingly, this particular avenue of resolving the ongoing dispute is closed.

The Australian Attorney-General, Daryl Williams, and the Australian Minister for Agriculture, Fisheries and Forestry, Warren Truss, said that they were disappointed that the Tribunal did not find it had jurisdiction.

Australia had initiated the action in good faith because of its real concern over the consequences of Japan’s unilateral experimental fishing and its effect on the severely depleted Southern Bluefin Tuna stock.

Mr Williams said that the Tribunal’s decision on jurisdiction did not in any way weaken Australia’s arguments that the action of Japan in conducting experimental fishing was contrary to its international obligations.

This is because the Tribunal only dealt with matters relating to its own jurisdiction. It did not deal with the merits of the Australian and New Zealand case.

Mr Williams said that the Tribunal had affirmed a number of the major arguments put forward by Australia and New Zealand. In particular, the Tribunal accepted that the dispute involved the application of UNCLOS.

It found, however, that the dispute settlement provision of the 1993 Agreement on Southern Bluefin Tuna between the three countries excluded recourse to the UNCLOS dispute settlement regime.

Mr Williams said that, as a result of the Tribunal’s decision, the provisional measures granted last year by ITLOS, would now cease to have effect.

However, Mr Williams drew attention to the Tribunal’s statement that the revocation of the ITLOS Order for provisional measures does not mean that the parties can disregard the effects of that Order.

Mr Williams also referred to the statement of the Tribunal that the prospects for a successful resolution of the dispute would be promoted by the parties abstaining from any unilateral acts that may aggravate the dispute.

Mr Truss said that Australia did not resile from its position on Japan’s experimental fishing. Mr Truss also called on Japan to accept the call by the Tribunal to refrain from unilateral acts that may exacerbate the dispute.

Mr Truss stressed that Australia’s ongoing commitment in this area related to the long-term conservation and optimum utilisation of the Southern Bluefin Tuna stock.

Australia would continue to explore all possible avenues to resolve the dispute amicably and expeditiously, including by negotiations, to achieve this goal.

Mr Truss and Mr Williams reiterated that Australia’s excellent overall bilateral relationship with Japan had not been adversely affected by the proceedings.

Federal Minister for Agriculture, Fisheries and Forestry, Warren Truss,
Federal Attorney-General, Daryl Williams

AFFA00/153WTJ 5 August 2000

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