Operative paragraph 1(d) of the judgment orders New Zealand, Australia and Japan to “refrain from conducting an experimental fishing programme … except with the agreement of the other parties or unless the experimental catch is counted against its annual national allocation …”.

When the three parties to the dispute failed to reach agreement on a joint experimental fishing programme, Japan unilaterally launched one and Australia took regulatory measures against Japanese fishing vessels, according to the Response submitted by Japan which reads in part:

At the start of 1998, in the absence of an agreed TAC [total allowable catch] and quotas, Australia refused to sign a bilateral fishing agreement with Japan to permit Japanese vessels to fish for other species in the Australian EEZ or to visit Australian ports. (Response, paragraph 17)

In this regard, the relevant part of article 64 of the United Nations Convention on the Law of the Sea may be noted with interest that: