Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), ITLOS Case No. 3 & 4, Provisional Measures, Response and Counter-Request for Provisional Measures Submitted by Japan (August 6, 1999)
1. With self-contradictory claims of urgency, Australia and New Zealand1 have come to the wrong forum to resolve baseless claims relying on bald statements of opinion dressed as fact. In doing so, they seek to avoid their responsibility for failing to cooperate in the operation of the Commission of the Convention for the Conservation of the Southern Bluefin Tuna (“Commission” and “CCSBT”) and in the scientific research necessary to make the Commission effective.
2. One would never know from the papers submitted by Australia and New Zealand that the Commission in recent years has invited expert scientists, independent of member nations, to assess essential and pressing scientific issues relating to the Commission’s work. Nor could one know from Applicants’ papers that those scientists have advised the Commission on the issues presented to this Tribunal as grounds for urgent action – let alone that their advice is in conflict with what Australia and New Zealand advance here.
3. The experts who have been consulted by the Commission in the past 18 months, including in connection with the establishment of a joint experimental fishing program, are Mr. J.J. Maguire and Drs. Patrick Sullivan, Robert Mohn, and Syoiti Tanaka. We requested that they provide their views, pursuant to which they have submitted a joint statement concerning major scientific issues presented by Australia and New Zealand in their request for provisional measures. Of most immediate significance, they make clear that there will not be irreparable damage to the southern bluefin tuna (“SBT”) from Japan’s experimental fishing program (“EFP”):