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Barbara Kwiatkowska

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Barbara Kwiatkowska

Abstract

The Southern Bluefin Tuna cases before the International Tribunal for the Law of the Sea resulted from disagreement between Australia, New Zealand and Japan related to the carrying out by Japan of an experimental fishing programme within the framework of the Convention for the Conservation of Southern Bluefin Tuna. The cases were the first instance of incidental proceedings on provisional measures under Article 290(5) of the LOS Convention and Article 25 of the ITLOS Statute, according to which ITLOS may prescribe provisional measures "if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires". The article considers the parties' arguments for and against the use of provisional measures, considers the provisional measures ordered by ITLOS and the reasons therefor by comparison to the practice of the ICJs, and finally considers the establishment of an Arbitral Tribunal to hear the merits of the substantive case.

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Barbara Kwiatkowska

Abstract

This article explores the unique role of the ICJ as the principal judicial organ of the United Nations in the development of the law of the sea as part of the global system of peace and security, during the Presidency of Judge Stephen M. Schwebel (United States) in the busiest triennium in the Court's history (1997-2000). The new style of governance brought by President Schwebel to the Court is appraised against the background of an "intrinsic" authority and paramount functions performed by the ICJ as the world's most senior international court and the only truly universal judicial body of general jurisdiction, as well as that of the continuously inter-active influence of the Court and the International Law Commission. The article surveys the law-of-the-sea-related cases of the Court in the context of an ongoing follow-up to the Overall Review and Appraisal of the UNCED Agenda 21 in the critical areas of environmental protection, international fisheries and navigation, equitable maritime delimitation and territorial questions, and international institutions. The inaugural practice of ITLOS and the awards of the two Arbitral Tribunals, of which President Schwebel was a member, are taken into due account. The article concludes that the Court will undoubtedly continue to further explore its unique role, as importantly reinforced in the triennium 1997-2000, in the years to come.

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Barbara Kwiatkowska

Abstract

The Southern Bluefin Tuna (Jurisdiction and Admissihilily) Award of 4 August 2000 marked the first instance of the application of compulsory arbitration under Part XV, Section 2 of the 1982 UN Law of the Sea Convention and of the exercise by the Annex VII Tribunal of la compétence de la compétence pursuant to Article 288(4) over the merits of the instant dispute. The 72-paragraph Award is a decision of pronounced procedural complexity and significant multifaceted impacts of which appreciation requires an in-depth acquaintance with procedural issues of peaceful settlement of disputes in general and the-law-of-the-sea-related disputes in particular. Therefore, the article surveys first the establishment of and the course of proceedings before the five-member Annex VII Arbitral Tribunal, presided over by the immediate former ICJ President, Judge Stephen M. Schwebel, and also comprising Judges Keith, Yamada. Feliciano and Tresselt. Subsequently, the wide range of specific paramount questions and answers of the Tribunal are scrutinised against the background of arguments advanced by the applicants (Australia and New Zealand) and the respondent (Japan) during both written and oral pleadings, including in reliance on the extensive ICJ jurisprudence and treaty practice concerned. On this basis, the article turns to an appraisal of the impacts of the Arbitral Tribunal's paramount holdings and its resultant dismissal of jurisdiction with the scrupulous regard for the fundamental principle of consensuality. Amongst such direct impacts as between the parties to the instant case, the inducements provided by the Award to reach a successful settlement in the future are of particular importance. The Award's indirect impacts concern exposition of the paramount doctrine of parallelism between the umbrella UN Convention and many compatible (fisheries, environmental and other) treaties, as well as of multifaceted, both substantial and procedural effects of that parallelism. All those contributions will importantly guide other courts and tribunals seised in the future under the Convention's Part XV, Section 2.

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Barbara Kwiatkowska

Abstract

This article analyses the 2001 Mox Plant (Provisional Measures) Order - the second instance of ITLOS acting under the innovatory LOSC Article 290(5) - pending the establishment of the Annex VII Mox Plant Arbitral Tribunal. An OSPAR Mox Plant Arbitration is also pending. The article analyses key aspects of the 2001 Order including the low thresholds for prima facie jurisdiction and the fundamental requirement of urgency, the distinctive treatment of "substantive" and "procedural" rights and the basis for the tribunals reliance on the precautionary principle, which is in the regional treaties concerned, but not in the LOSC. These issues are scrutinized in the light of the application of the doctrine of treaty parallelism as expounded by the 2000 Southern Bluefin Tuna (Jurisdiction and Admissibility) Award. The article argues that the legitimacy of the Order could have been increased had ITLOS defined the Mox Plant dispute as an EU-law centered dispute, and it concludes with the hope that the Mox Plant case will provide an incentive for the European Community as party to LOSC to give closer and constructive consideration to its policy on the settlement of ocean and other environmental disputes.