Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), ITLOS Case No. 3 & 4, Provisional Measures, Order, Dissenting Opinion of Judge Vukas (August 27, 1999)
1. Although I appreciate and share the concern for the survival of the southern bluefin tuna stock, expressed in the Tribunal's Order, my interpretation of the relevant provisions of the United Nations Convention on the Law of the Sea (hereinafter: “the Convention” or “the Law of the Sea Convention”) obliges me to formulate the present Dissenting Opinion. Namely, I am not convinced that the requirements for the prescription of provisional measures by the Tribunal, set out in article 290, paragraph 5, of the Convention, are satisfied in the present case. Specifically, contrary to the Tribunal (paragraph 80 of the Order), I do not consider that there is an “urgency of the situation” in the present case, which would require the prescription of the provisional measures requested by New Zealand and Australia.
2. When the Tribunal is asked to prescribe, modify or revoke provisional measures under article 290, paragraph 5, it may do so only “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”. I do agree with the Tribunal (paragraph 52 of the Order) that the first requirement from article 290, paragraph 5, is satisfied. The arbitral tribunal to be established in accordance with Annex VII to the Convention has prima facie jurisdiction in this case, as it concerns not only the implementation of the 1993 Convention for the Conservation of Southern Bluefin Tuna, but also the interpretation and application of the provisions of the Law of the Sea Convention, dealing with conservation and management of the living resources of the exclusive economic zone and of the high seas (paragraphs 48 to 50 of the Order). The Applicants are entitled to submit their request to the arbitral tribunal, as no settlement has been reached by recourse to Part XV, section 1, of the Law of the Sea Convention. This condition for the submission of a dispute to the arbitral tribunal, provided for in article 286 of the Convention, has been fulfilled by the Applicants by way of several exchanges of views they had with Japan in 1998 and 1999, concerning the fishing for southern bluefin tuna, particularly Japan’s experimental fishing programme. These consultations and negotiations concerned the interpretation and application of both the 1993 Convention for the Conservation of Southern Bluefin Tuna and the Law of the Sea Convention, but they proved to be unsuccessful. I do agree with the Tribunal that, once New Zealand and Australia considered that the possibility of settlement under section 1 of Part XV of the Convention had been exhausted, they were entitled to invoke the procedures under section 2 of Part XV (paragraphs 56 to 62 of the Order).