The Other Australia/Japan Living Marine Resources Dispute

Inferences on the Merits of the Southern Bluefin Tuna Arbitration in Light of the Whaling Case


In 2000, the case brought by Australia and New Zealand against Japan's unilateral experimental fishing programme for southern bluefin tuna controversially failed to reach the merits for lack of the arbitral tribunal’s jurisdiction. It was widely supposed that it would ultimately have failed anyway because of international courts’ reluctance to consider scientific matters, the dispute's underlying cause being the parties' scientific disagreements regarding both the tuna stock itself and the nature and risks of the experiment. In 2014, however, the ICJ decided in Australia's favour the case against Japan's scientific whaling, based on flaws in the design of that experiment. Reviewing the tuna experiment's evolving design, the propositions it was to (dis)prove and the use Japan intended for that proof, Andrew Serdy suggests that similar factors were at play in both disputes and that a similar outcome of the tuna case, though not inevitable, would have been amply justified.

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Andrew Serdy, Ph.D. (2009, Australian National University), is Professor of Public International Law at the University of Southampton, specialising in the Law of the Sea. Previously of the Department of Foreign Affairs and Trade (Australia), he has published widely on ocean resources law.
“Serdy’s monograph re-examines the merits of the Southern Bluefin Tuna case (Australia and New Zealand v. Japan), in which an arbitral tribunal constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea (the LOSC) declined to proceed to the merits on the basis that it lacked jurisdiction.
The monograph draws the reader’s attention to the new perspectives that the Whaling case provides concerning the judicial review of allegedly scientific programmes targeting marine living resources.”
- Valentin Johannes Schatz, Research Associate, Chair of Public International Law, University of Trier
The Other Australia/Japan Dispute on Living Marine Resources: Inferences on the Merits of the Southern Bluefin Tuna Arbitration in Light of the Decision in the Whaling Case
Andrew Serdy Faculty of Business, Law and Art University of Southampton
1 Introduction
2 The Whaling case judgment
3 Southern bluefin tuna: the fish
4 Historical overview of the Japanese SBT fishery
5 First interactions
6 The state of the stock
7 The first quotas and their subsequent reduction
8 Gestation of the dispute – interpretation of CPUE
9 Impasse in the CCSBT
10 Japan’s experimental fishing
11 The relevant law identified in the Statements of Claim
12 The ITLOS hearing and Order
13 The parties’ arguments before the Annex VII Arbitral Tribunal
14 The Annex VII Arbitral Tribunal’s Award on jurisdiction
15 Resolution of the dispute
a The SBT Scientific Research Program
b Japanese commercial catch affected by the ITLOS Order
c The new-old quota of 2003
16 Issues left unresolved because the case did not go to the merits
a Possible damaging admissions by Japan in the Indian Ocean Tuna Commission
b Best scientific evidence (design of the experimental fishing programme and analysis of its results)
c The allegation that Japan’s experimental fishing was commercially motivated
d Decision-making in the CCSBT and the duty of cooperation
e The relationship between conservation and optimum utilisation
17 Concluding observations
APPENDIX SBT fishery science
Maximum sustainable yield – the surplus production model of fisheries
Virtual population analysis
Scientific advice to managers

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