SOUTHERN BLUEFIN TUNA CASE

Australia and New Zealand v. Japan

QUESTIONS OF THE ARBITRAL TRIBUNAL FOR THE PARTIES

Answers by

Australia and New Zealand

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26 May 2000

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Question 1

Reference has often been made to the "seriously depleted stock of SBT." The current status of the SBT stock may be relevant for the characterization of this dispute. Australia, New Zealand and Japan agreed in the CCSBT Commission around 1990, that the rebuilding objective is to restore the parental stock of SBT to its 1980 level by the year 2020, that is in approximately 30 years. Since 1990 these countries restricted their annual catches of SBT to the level of 11,750 metric tons. It is understood that currently they catch up to this level, and that the essential level of non-party catch is known. They have also agreed in principle to the need of an EFP which involves additional catch for a limited period of a few years, although there's not been an agreement on the amount of such additional catch. Do the Parties accordingly believe that the SBT stock is on a recovery course toward the accepted objective level?

1.1 The short answer is ‘no’. A/NZ do not believe the stock is on a recovery

course, and no conclusion to that effect has ever been adopted by the parties.

1.2 It was recognised in the 1980s that the SBT stock had declined to

historically low levels. Catch reductions followed, but the decline continued. As

recently as 1998, the CCSBT Scientific Committee agreed that the continued

historically low abundance of SBT gave “cause for serious biological concern” (see

Report of the Fourth Meeting of the Scientific Committee, 3-6 August 1998, p. 7

(Dossier, Vol. 2.3, No. 9.14)).

1.3 A/NZ consider there is no sign that the stock has recovered. Nor are there

any indications from which one can confidently predict that it is on a recovery course

towards the rebuilding objective to restore the parental stock of SBT to its 1980 level

by the year 2020–the reference point for stock rebuilding that has been used since

1983 and which corresponds to commonly used thresholds for biologically safe

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parental biomass. All the signs still indicate the need for continued catch restraint,

not for catch increases.

1.4 The situation relative to the SBT stock rebuilding objective was

summarised by Professor Beddington in his report to ITLOS in August 1999 at

paragraph 42:

“...there is a substantial probability that, under 1997 harvest levels, the spawning stock will not recover to 1980 levels by 2020. Indeed, there is a distinct probability that it will not increase at all under 1997 harvest levels”.

Professor Beddington is not alone in reaching this conclusion. A/NZ scientists have

concluded that the stock remains in very poor condition and will likely continue to

decline or at least not recover (Ibid at p. 8). Stock projections based on Australian

and New Zealand assessments yield very low estimates for the probability of

recovery (<14% and 7% respectively). Japan’s stock projections can yield higher

estimates for the probability of recovery. However, in A/NZ’s view, these high rates

are inconsistent with the input data and are very unreliable. Correcting for these

inconsistencies reduces the Japanese estimates of the probability of recovery

markedly (see: Ibid at p. 6; Report of the First Meeting of the Stock Assessment

Group 1998, p. 24).

1.5 Also, as noted before the Tribunal, the Applicants have difficulty with the

underlying premise contained in the last sentence of the second paragraph of the

Tribunal’s question, that A/NZ and Japan:

“...have also agreed in principle to the need of an EFP which involves additional catch for a limited period of a few years although there has not been an agreement on the amount of such additional catch.”

A/NZ have not unconditionally agreed to the need for an EFP. A/NZ have stated in

the past that a properly designed and implemented EFP could be useful, but not

essential. That is why A/NZ agreed to criteria for EFP design in the 1996 Objectives

and Principles and predicated any agreement to a joint EFP upon the development of

a scientifically valid experiment.

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1.6 A/NZ have consistently maintained that there are other more valuable

methods for improving the scientific knowledge of SBT, especially in light of its

status as a severely depleted stock. In this respect, the Applicants draw the

Tribunal’s attention to the paper entitled ‘Potential Future Research Activities for the

Southern Bluefin Tuna Research Program (SBTRP)’ (tabled by Australia at the most

recent Meeting of the Commission for the Conservation of Southern Bluefin Tuna

and forming Item 27 in the Applicants’ hearing book handed to the Tribunal on 7

May 2000). That paper sets out a number of these methods and the benefits of them

in some detail.

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Question 2 Do the Parties consider CCSBT to be compatible with UNCLOS within the meaning of UNCLOS Article 311, paragraph 2?

2.1 A/NZ consider CCSBT to fall within the scope of Article 311(2), being an

agreement which is compatible with UNCLOS. This view was put forward by A/NZ

in their Reply on Jurisdiction (see, for example, para. 148) and in their oral

submissions to the Tribunal (see, for example, Transcript of Professor Crawford’s

speech of 8 May at p. 380, lines 16-21).

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Question 3

Having regard to Article 311, what effect is to be given to international agreements that are incompatible with UNCLOS?

3.1 In Article 311, UNCLOS specifically addresses the issue of its relationship

with other agreements, be they compatible or incompatible. The effect to be given to

agreements that are incompatible with UNCLOS must be determined by applying the

relevant provisions of Article 311 to the agreement in question. The following

analysis focuses specifically on the provisions of Article 311 which were the subject

of argument before the Tribunal.

3.2 It should however be noted that, for the reasons stated in response to

Question 2, there is no basis for considering any provision of the 1993 Convention to

be inconsistent with UNCLOS. This does not mean that the conduct of one or more

of the parties in relation to the 1993 Convention could not raise questions of a

possible breach of UNCLOS obligations. To the extent they did so, a Part XV

tribunal would have jurisdiction over any dispute involving such conduct, and there

is nothing in the 1993 Convention which purports to exclude such jurisdiction.

Article 311(2)

3.3 Article 311(2) provides as follows:

“This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.”

3.4 Article 311(2) preserves agreements which:

• are “compatible” with UNCLOS; and

• “do not affect the enjoyment by other States Parties of their rights or

the performance of their obligations” under UNCLOS.

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3.5 As noted by Professor Crawford in his speech on 8 May, the effect of this

is to allow for parallel obligations in the absence of inconsistency (Transcript, p.371,

lines 6-7). The concept of parallel obligations means that both UNCLOS and the

other agreement would be applicable to the relations between the parties unless there

is an inconsistency or conflict between them. In the event of inconsistency between

UNCLOS and the other agreement, the latter would yield to the former.

Article 311(3)

3.6 Article 311(3) provides as follows:

“Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.”

3.7 Article 311(3) permits States Parties to enter into agreements inter se

“modifying or suspending the operation of provisions” of UNCLOS, in effect,

agreements that may be incompatible with UNCLOS. However, such agreements

may stand only if they meet the stringent requirements of Article 311(3) (see the

Transcript of Professor Crawford’s speech of 8 May at p. 347, line 18 to p. 349, line

1). States Parties intending to conclude such agreements are also required by Article

311(4) to inform other States Parties.

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Article 311(5)

3.8 Article 311(5) provides as follows:

“This article does not affect international agreements expressly permitted or preserved by other articles of this Convention.”

3.9 Article 311(5) exempts “international agreements expressly permitted or

preserved” by other provisions of UNCLOS from the operation of Article 311. For

example, it would exempt agreements within its scope from the operation of

Article 311(2). This demonstrates the need to interpret strictly the words “expressly

permitted or preserved”. The use of the word “expressly” by the drafters of

Article 311(5) reinforces this point (see the Transcript of Professor Crawford’s

speech of 8 May at p. 383, line 19 to p. 384, line 6). Accordingly, the application of

Article 311(5) requires a rigorous analysis of the relevant UNCLOS articles dealing

with other agreements.

3.10 The fact that an agreement comes within the terms of Article 311(5) (i.e.

is expressly permitted) does not mean that it is necessarily inconsistent with

UNCLOS. The text of Article 311(5) provides no basis for abandoning the

presumption that two treaties are consistent with each other, particularly where they

refer to or envisage each other (see the Transcript of Professor Crawford’s speech of

8 May at p. 385, lines 1 to 16). Properly interpreted, the 1993 Convention is entirely

consistent with UNCLOS, whether or not it is an agreement covered by Article 311

(5).

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Question 4 May a Party to the CCSBT violate it without also violating UNCLOS (Articles 64, 116-119)? May a party to both treaties violate UNCLOS (Articles 64, 116-119) without also violating the CCSBT?

4.1 The Applicants’ answer to both parts of this question is yes.

4.2 The first part of this question has largely been answered by the remarks of

Mr Mansfield in the course of Applicants’ surrebuttal. He said (Transcript, p.638,

line 18 to p.639, line 1): “We are not saying that conduct that would be a breach of

the ‘93 Convention would always be a breach of UNCLOS. But it is possible that

conduct in breach of the ‘93 Convention might also be a breach of UNCLOS.” As

the two treaties can and do stand together (see answer to Question 2), whether or not

a violation of CCSBT constitutes also a violation of one or more of Articles 64 and

116-119 of UNCLOS will depend solely on whether or not the facts of the situation

come within the terms of those Articles.

4.3 For example, if a party to CCSBT were to disagree with the Secretariat’s

calculation of the amount it is required by Article 11(2) to contribute to the

Commission’s operations in a given year, there would be a dispute under the

CCSBT. But the mere fact of a dispute over the amount payable would not involve a

dispute in relation to UNCLOS. In the circumstances cited, such a dispute would

exclusively concern the CCSBT. On the other hand, if a State party were to withhold

all payments to the Commission until its demand for a substantial extra quota had

been met, and the Commission’s operations had as a result to be severely curtailed in

the interim for lack of funds, that might well cross the threshold of applicability of

UNCLOS, especially if the stock was depleted and there was no justification for the

increase in quota.

4.4 The second part of the question also been answered by Professor

Crawford in his speech of 8 May, where he analyses the text of the CCSBT and

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concludes that the express obligation to cooperate found in UNCLOS is nowhere

reproduced in it, (Transcript, p.356, line 13 to p.357, line 13) and in particular by his

statement that “We do not accept that the 1993 Convention covers all relevant

aspects of UNCLOS” (Transcript p.380, lines 11-12).

4.5 Thus it is ANZ’s submission that a breach of UNCLOS is neither a

sufficient nor a necessary condition for a breach of the CCSBT, and vice versa. The

contrary position was wrongly attributed to AN/Z by Sir Eli Lauterpacht:

“Suppose that the substantive LOS parts of these many treaties are regarded as being UNCLOS-related parts, so that, as argued by A/NZ in relation to CCSBT, breaches of them are breaches of UNCLOS.” (Transcript, p.518)

The central point is that each Convention applies in its own terms; the present

Tribunal has jurisdiction in relation to disputes arising under UNCLOS.

4.6 Whether or not conduct is a breach of both treaties, or one or the other,

depends on analysis of the terms of the treaties in the particular case. The point was

made by Professor Crawford:

“[I]t does not follow from the fact the two treaties are compatible and can coexist, that particular conduct will necessarily be a breach of both. It may or it may not. To determine that you have to look at the terms of each of them. If the language of the two treaties is in all respects identical, no doubt the same conduct will be a breach of both...But of course UNCLOS and the 1993 Convention are not identical in terms...To determine whether there’s been a breach, you apply the dispute settlement provisions of each.” (Transcript, p. 381, line 18 to p. 382, line 11).

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Question 5

If the 1993 Convention exclusively governs Southern Bluefin Tuna among the parties to the Convention, as Japan maintains, are there obligations under UNCLOS or customary international law in respect of the fishing of Southern Bluefin Tuna for States not party to the 1993 Convention and, if so, what is the content of those obligations? Are there obligations of parties to CCSBT running in favour of non-Parties which are party to UNCLOS?

5.1 The Applicants’ answer to both parts of this question is yes.

5.2 Even if the premise stated in the first part were correct, in the Applicants’

view the relationship between a party to the 1993 Convention and a non-party

fishing or wishing to fish for SBT would be governed by UNCLOS and ancillary

rules of customary international law. The Applicants do not understand Japan to

have argued that the mere existence of the 1993 Convention means that UNCLOS no

longer applies to non-parties to the 1993 Convention in respect of SBT.

5.3 Articles 64 and 118 of UNCLOS oblige non-parties to the 1993

Convention who are parties to UNCLOS to cooperate with the parties to the 1993

Convention either directly or through the Commission as the vehicle through which

its members pursue their interests in the SBT fishery. Such non-parties have the

obligation to act in accordance with Articles 117 and 119: indeed Japan does not

argue otherwise. Those non-parties also are obliged to give effect to relevant

customary international law. Countries which are not a party to either the 1993

Convention or UNCLOS would be obliged, in respect of SBT, to give effect to

customary international law including those aspects of customary international law

which are reflected in UNCLOS.

5.4 As to the second part of the question, the Parties to the 1993 Convention

remain bound to cooperate with and perform their other obligations to non-parties

under UNCLOS. The source of those obligations is however UNCLOS, not CCSBT,

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and this is so irrespective of the correctness or otherwise of the Japanese argument

concerning the exclusivity of the 1993 Convention as among its Parties.

5.5 But the fact that third parties are obligated by UNCLOS in relation to the

parties to the 1993 Convention, and that the parties to the 1993 Convention are

bound by UNCLOS in relation to third parties, shows the anomalous character of

Japan’s arguments. Japan argues that the mere fact of the 1993 Convention excludes

UNCLOS in the relations between the three parties to it. That means that, if the

1993 Convention involves a lower standard than UNCLOS, the parties have in effect

released themselves from their UNCLOS obligations while still being entitled to hold

third parties to a higher standard. That is, in effect, Japan’s position (it wishes to

increase its own catch while reducing everyone else’s). But it is not a tolerable or

acceptable interpretation.

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Question 6

Will the Parties comment on the contention that Articles 280 and 281 of UNCLOS refer only to agreements reached after a dispute has arisen?

6.1 A/NZ recall that, in their surrebuttal on 11 May, Mr Burmester dealt with

Articles 280 and 281 (see, for example, Transcript p. 603, line 5 to p. 612, line 7).

He rebutted Japan’s arguments concerning the application of Articles 280 and 281 to

Article 16 of the CCSBT.

6.2 Mr Burmester addressed the issue raised in the Tribunal’s question, stating

that A/NZ:

“...now agree that treaties with dispute settlement provisions already in existence and capable of applying to an UNCLOS dispute, may amount to an agreement that falls within the scope of [Articles 280 and 281]”. (Transcript p. 603, lines 8 to 11)

6.3 Whether a particular treaty does, in fact, fall within the scope of those

articles, depends on whether the treaty contains an “agreement” to settle by a

particular means or whether it only contains a mechanism by which agreement can

be reached. In the latter case it is the subsequent agreement to a particular

mechanism and not the prior agreement itself which meets the requirements of

Articles 280 and 281.

6.4 A/NZ point out that Articles 280 and 281, in common with the rest of Part

XV of UNCLOS, are dealing with disputes ‘concerning the interpretation or

application of this Convention’ - ‘this Convention’ being UNCLOS. That is the form

of dispute which must be addressed by the ‘peaceful means of their own choice’

referred to in those articles.

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Question 7

In Article 281 of UNCLOS, paragraph 1, what is meant by “the agreement between the parties does not exclude any further procedure”?

7.1 Article 281(1) provides that:

“If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.”

7.2 This provision applies in the situation where parties to a dispute

concerning UNCLOS have pursued its settlement by peaceful means of their own

choice. In such a situation, it permits parties access to the procedures of Part XV,

including those in section 2 providing for compulsory settlement of disputes, when

two conditions have been satisfied. The first is that no settlement has been reached

by the peaceful means agreed to by the parties. The second is that “the agreement

between the parties does not exclude any further procedure”.

7.3 The Tribunal’s question relates to the interpretation of the second

condition.

7.4 Given that failing to meet this condition will exclude recourse to

procedures under Part XV, an agreement between the parties which is argued to

“exclude any further procedure” must be interpreted strictly. It must make clear that

the agreed procedure is final and conclusive. This point was illustrated in the

following terms by Mr Burmester in his speech on 11 May:

“...the Parties to a dispute might agree on an ad hoc basis to appoint a single arbitrator and to abide by his or her decision. Such a situation would seem to fall within the situation contemplated by Article 281. By contrast, if the Parties agree to mediate, and that is unsuccessful, the intention of Article 281 is that in that situation

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recourse to further procedures under Part XV can then occur. Parties to a dispute could, of course, agree to mediate, and at the same time agree that the outcome of the mediation was to be the end of the matter so far as the dispute was concerned. And Article 281 would again apply to preclude use of further procedures under Part XV.” (Transcript p. 609, line 20 to p. 610, line 12)

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Question 8 In concluding the 1993 Convention and Article 16 thereof, if it was the intent, as Australia and New Zealand appear to argue or infer, to leave UNCLOS’ mandatory settlement of disputes involving Southern Bluefin Tuna unaffected, why do not the terms of Article 16 reflect this intention? Why do not the terms of Article 16 provide for compulsory settlement of the type provided for in UNCLOS?

8.1 The answer to the first part of the question is that the 1993 Convention

and UNCLOS as drafted already result in disputes concerning the interpretation and

application of UNCLOS in relation to SBT being dealt with under Part XV of

UNCLOS. This conclusion results from a plain reading of the two treaties. In the

circumstances, there was no need for an additional provision in the 1993 Convention

preserving compulsory jurisdiction under Part XV of UNCLOS. Indeed, this

conclusion is confirmed by the fact that Article 16 only deals with disputes

“concerning the interpretation and application” of the 1993 Convention. It is not a

dispute settlement clause purporting to deal with disputes concerning the

interpretation and application of UNCLOS in relation to SBT. Furthermore, the

1993 Convention was negotiated against the background of UNCLOS. There was no

intention to displace the regime for dispute settlement under Part XV.

8.2 A/NZ will now respond to the second part of the question. As noted by

Mr Mansfield in the course of the Applicants’ surrebuttal (Transcript p. 629, line 16

to p. 633, line 11), A/NZ had stated their preference for some form of binding third

party dispute settlement under the 1993 Convention. It was at Japan’s insistence that

the parties ultimately did not provide for compulsory settlement of disputes

concerning the 1993 Convention. A/NZ cannot at the same time be taken to have

accepted an approach of renouncing any resort to dispute settlement under Part XV

of UNCLOS. If there was such an intention, then it is that intention that would have

been the subject of an express provision. There is no such express provision, and no

basis for reading such an implication into Article 16.

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8.3 The principle that two jurisdictional clauses are presumed to operate in parallel

rather than one excluding the other (as to which see, e.g. Case concerning Border

and Transborder Armed Actions (Nicaragua v Honduras) (Preliminary Objections)

ICJ Reports 1988 p. 69) applies a fortiori where (a) one of the instruments is an

implementation agreement while the other is a head agreement; and (b) the

implementation agreement does not actually contain a third party dispute settlement

procedure but merely a set of options.

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Question 9

Do the many international agreements cited in Annex 47, Part B(1) of the Memorial of Japan show that governments do not attach fundamental importance to compulsory and binding dispute settlement in law-of-the-sea matters?

9.1 No. First, a number of the cited agreements have no real connection to

UNCLOS and cannot accurately be characterised as covering law of the sea matters.

Further, of those agreements which do concern elements of the law of the sea, a

number specifically recognise that they do not derogate from UNCLOS. Finally, the

dispute settlement provisions of the agreements cited apply only to disputes relating

to those agreements and do not contain anything to suggest an intention to exclude

reference to the compulsory and binding settlement procedures under UNCLOS

itself.

9.2 In elaborating on this answer, A/NZ believe it would be helpful to start

with an examination of the range of agreements included in Part B(1) of the revised

Annex 47 to Japan’s Memorial. A/NZ do not intend to embark upon an article-by-

article analysis of each treaty. Such an exercise is not possible in the time available.

Nor is it necessary to do so in order to establish key points concerning the focus of

this question, i.e. whether the agreements cited by Japan evidence any relevant State

practice.

9.3 As a preliminary observation, A/NZ recall Sir Elihu Lauterpacht’s speech

on 7 May in which he referred to the treaties contained in Part B(1) in the following

terms:

“The titles of some of them may suggest that they have nothing to do with the law of the sea, but my belief is that in every item, there is a provision, albeit sometimes remote, which deals with a topic covered by some article of UNCLOS.” (Transcript p. 141, line 19 to p. 142, line 3)

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9.4 A/NZ note that Sir Elihu Lauterpacht acknowledged that there may be a

“remote” link between some of the treaties in Part B(1) and UNCLOS. In fact, in

relation to some agreements no link whatever exists. By way of example, A/NZ refer

to the United States - Netherlands Memorandum of Understanding Concerning

Measures to be Taken for the Transfer, Security and Safeguarding of Technical

Information, Software and Equipment to the Ministry of Defence to Enable Industry

to Establish North Sea ACMI Range Display and Debriefing System Facilities in

The Netherlands (No. 55 in Part B(1)). This MOU does contain a reference to the

North Sea in its lengthy title, which perhaps might hint at some connection between

the substance of the MOU and UNCLOS. However, an examination of the substance

shows that there is no connection.

9.5 Section III of the MOU outlines its scope in the following terms:

“3.1 This MOU is designed to provide a government-to-government relationship that will permit the establishment of North Sea ACMI DDS facilities in The Netherlands.

3.2 The scope of this MOU covers:

(a) the transfer and use of ACMI Items;

(b) security measures for transmission of classified ACMI information from the North Sea ACMI range facilities in the United Kingdom to the North Sea ACMI DDS facilities in The Netherlands; and

(c) security procedures for the use or generation of classified ACMI information in North Sea ACMI DDS facilities in The Netherlands.

[The acronym “ACMI” stands for Air Combat Manoeuvring Instrumentation and the acronym “DDS” stands for Display and Debriefing System.]

As Section III makes clear, the MOU concerns the protection of sensitive military

information linked to ACMI, not a matter that has any connection to UNCLOS.

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9.6 As another example, it is difficult to see the connection between UNCLOS

and the Protocol to the 1979 Convention on Long-Range Transboundary Air

Pollution on Long-Term Financing of the Co-operative Programme for Monitoring

and Evaluation of the Long-Range Transmission of Air Pollutants in Europe (No.16

in Part B(1)).

9.7 Turning to the matter of the agreements listed in Part B(1) which do have

a connection with UNCLOS, A/NZ note that Japan has focused on the dispute

resolution provisions of these agreements, providing little or no analysis of their

other provisions. It makes assertions about the dispute settlement provisions without

placing them in the context of the provisions to which they relate.

9.8 For example, in Sir Elihu Lauterpacht’s speech on 7 May he referred to

the Convention for the Protection and Development of the Marine Environment of

the Wider Caribbean Region, which entered into force in 1986 (No. 13 in Part B(1)).

He cited the dispute settlement clause, Article 23, arguing that:

“It clearly excludes recourse to UNCLOS Part XV procedures. If UNCLOS Part XV procedures did, in a manner contemplated by A/NZ, automatically apply to this Convention, there would have been no need for this provision.” (Transcript p.143, lines 6 - 10)

9.9 Article 23, on its face, applies to disputes concerning the interpretation or

application of the Wider Caribbean Convention, not UNCLOS. As stated by

Professor Crawford in his speech on 8 May, A/NZ:

“...have never said that Part XV applies to disputes which are not disputes involving the interpretation and application of UNCLOS. We have never said that UNCLOS overrides dispute settlement provisions, mandatory or otherwise, relating to disputes under other conventions”. (Transcript p. 349, line 21 to p. 350, line 6)

9.10 Sir Elihu Lauterpacht did not refer to Article 3 of the Wider Caribbean

Convention, paragraph 2 of which provides as follows:

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“This Convention and its protocols shall be construed in accordance with international law relating to their subject-matter. Nothing in this Convention or its protocols shall be deemed to affect obligations assumed by the Contracting Parties under agreements previously concluded.”

9.11 This provision does have a significant bearing on the interpretation of the

Convention as a whole. It makes clear that the Convention is not intended to

derogate from, or “eclipse”, other agreements previously concluded, which would

include UNCLOS.

9.12 In its Memorial (at paragraph 141), Japan refers to the Niue Treaty on

Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific

Region as an example of a treaty containing a non-derogation clause which indicates

“...the intention of the parties that UNCLOS provisions should continue to apply

between them in relation to matters covered by the treaty”. In A/NZ’s view, such a

provision is essentially declaratory in character. If the parties to such agreements

(being also parties to UNCLOS) wished to exclude UNCLOS obligations or modify

them inter se, they would have to say so, and the provisions of Article 311(3) would

determine to what extent such a provision could apply.

9.13 There are several more examples of such treaties in Annex 47.

9.14 Treaty number 72 is the Agreement on the Conservation of Cetaceans of

the Black Sea, Mediterranean Sea and Contiguous Atlantic Area, which was

concluded in 1996. In its Memorial (at paragraph 140) Japan cites the dispute

settlement provision of the Cetaceans Agreement (Article XII) and asserts that

Parties to the Agreement could not have “intended that any dispute might be referred

to the compulsory procedures of UNCLOS Part XV by the expedient of describing

the dispute in terms of general obligations in UNCLOS”. Japan adds that the “intent

to establish a lex specialis is manifest”.

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9.15 However, Japan does not refer to Article XI of the Cetaceans Agreement

which provides as follows:

“1. The provisions of this Agreement shall not affect the right of any Party to maintain or adopt more stringent measures for the conservation of cetaceans and their habitats, nor the rights or obligations of any Party deriving from any existing treaty, convention or agreement to which it is a party, except where the exercise of those rights and obligations would threaten the conservation of cetaceans.

2. Parties shall implement this Agreement consistently with their rights and obligations arising under the law of the sea.”

As with Article 3 of the Wider Carribean Convention, this provision makes clear that

the Cetaceans Agreement is not intended to derogate from, or “eclipse”, other

agreements previously concluded, which would include UNCLOS (paragraph 2

underlines this point).

9.16 Other agreements in Annex 47 containing non-derogation clauses include:

• No. 14 - Agreement between the United States and Chile concerning

Marine Scientific Research (paragraph 7);

• No. 17 - Agreement between the United States and the European

Economic Community Concerning Fisheries off the Coasts of the United

States (Article XVII) (an agreement referred to by Sir Elihu Lauterpacht in

his speech on 7 May; see Transcript p. 144, lines 4 to 15);

• No. 20 - Convention for the Protection, Management and Development of

the Marine and Coastal Environment of the Eastern African Region

(Article 3);

• No. 27 - Convention for the Protection of the Natural Resources and

Environment of the South Pacific Region (Article 4) (an agreement

referred to by Sir Elihu Lauterpacht in his speech on 7 May; see Transcript

p. 144, line 16 to p. 145, line 14);

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• No. 42 - Convention on Environmental Impact Assessment in a

Transboundary Context (Article 2); and

• No. 52 - Agreement between the United States and Estonia concerning

Fisheries off the Coasts of the United States (Article XVI).

9.17 Clearly, if the parties to these agreements have provided for non-

derogation from UNCLOS, then they accept that their obligations under the

agreements can co-exist with their obligations under UNCLOS. This is contrary to

the position expressed by Sir Elihu Lauterpacht in his speech in rebuttal on 10 May

when he stated that the provisions of the treaties in Annex 47 relating to law of the

sea matters “replace, override, and eclipse UNCLOS” (Transcript p. 516, line 19).

9.18 The citing of these agreements containing non-derogation clauses by

A/NZ does not support an argument that the other agreements referred to by Japan

are evidence that States have sought to exclude their UNCLOS obligations by not

incorporating non-derogation clauses. A/NZ reiterate their view that Article 311 of

UNCLOS is of critical importance in addressing the issue of the relationship between

UNCLOS and other agreements. The presence of a non-derogation clause in an

agreement bearing on matters within the scope of UNCLOS would clearly assist in

determining that the agreement is compatible with UNCLOS for the purposes of

Article 311(2). The presence of such a clause in an agreement within the ambit of

Article 311(5) would also assist in determining that agreement’s compatibility with

UNCLOS.

9.19 However, the absence of a non-derogation clause would not be

determinative of the relationship between an agreement and UNCLOS. An

agreement would have to be analysed as a whole in the framework of Article 311 to

determine its relationship with UNCLOS.

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9.20 Turning to the issue of dispute settlement, as submitted in surrebuttal by

Mr Mansfield, the dispute settlement clauses of the agreements cited by Japan do not

indicate an intention to exclude reference to the binding and compulsory procedures

of Part XV of UNCLOS. Although the dispute settlement clauses are varied, they are

consistent in that they apply to disputes relating to the interpretation, application or

implementation of the specific agreements. They do not purport to apply to disputes

relating to the interpretation or application of UNCLOS. Further, with a few notable

exceptions (addressed in A/NZ’s answer to Question 10), the agreements do not

expressly exclude reference of disputes to compulsory dispute settlement procedures

available under another treaty. In the absence of such an express provision, or

similarly unequivocal evidence of State intention, there is no reason to support

Japan’s contention that such a prohibition must be implied.

9.21 Finally, Japan elaborated a fall-back position in the event that its

argument concerning the demise of UNCLOS provisions was rejected by the

Tribunal. It sought to argue that Article 16 of the CCSBT constituted an agreement

between the parties to settle an UNCLOS dispute within the meaning of Articles 280

and 281 of UNCLOS.

9.22 Mr Burmester refuted in his speech in surrebuttal on 11 May Japan’s

argument in relation to Article 16. He began by making the simple observation that

Article 16 only deals with disputes under the CCSBT. In the event the Tribunal did

not accept this proposition, Mr Burmester went on to give a detailed analysis of

Article 16 and UNCLOS Articles 280 and 281, demonstrating that Article 16 would

not operate to preclude reliance on Part XV procedures (Transcript p. 600, line 5 to

p. 612, line 7).

9.23 A/NZ note that Sir Elihu Lauterpacht extended Japan’s fall-back position

on Article 16 to the dispute settlement provisions of the treaties contained in Annex

47 (Transcript p. 518, line 19 to p. 519 line 2). He did not undertake a detailed

analysis of the provisions in the framework of Articles 280 and 281 of UNCLOS.

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These broad assertions are no substitute for the type of analysis undertaken by Mr

Burmester.

9.24 The analysis undertaken above reveals Japan’s claim that a coherent body

of State practice supports its position on both the substantive and dispute settlement

provisions of the treaties in Annex 47 cannot be sustained. The mere assertion of a

questionable interpretation is not a form of State practice. Japan cited no example of

the parties to one of the listed conventions expressing the view that it excluded

UNCLOS either substantively or (in relation to disputes covered by UNCLOS)

procedurally. In three cases, however, analysed below in response to the question

asked by Justice Sir Kenneth Keith, there was an express provision to that effect.

None of the three Conventions concerns matters covered by UNCLOS, and there is

no incompatibility in their case between the negative dispute settlement clause and

the provisions of UNCLOS.

26

Question 10

On 11 May, Justice Sir Kenneth Keith directed a question to the Parties in the

following terms:

“Looking at Annex 47, I note that at least two of the treaties included in [Japan’s] Part B(1) do use an expression - an express negative formula, that is, that a dispute will not be referred to an international tribunal or third party for settlement.

What significance do the Parties give to such practice involving, as I say, negative provisions in the dispute settlement provision?” (Transcript p. 649, lines 1 to 10)

Sir Kenneth suggested the question was:

“...supplementary to that which [the Tribunal] have already asked about the phrase in Article 281, Paragraph 1, that is, the phrase: ‘The Agreement between the parties does not exclude any further procedure.’” (Transcript p. 648, lines 17 to 21)

10.1 A/NZ believe that there are three agreements in Part B(1) of Annex 47

which use the negative formula referred to by Sir Kenneth. A/NZ submit that the

existence of these provisions supports that Applicants’ submission that where there is

an intention to exclude dispute settlement, even under another treaty, the parties do

so expressly and there is no reason to imply the interpretation argued by Japan.

10.2 The three agreements are the:

• Memorandum of Understanding Concerning a Cooperative Study of the

Surface Effect Ship (No. 24 in Part B(1));

• United States - Netherlands Memorandum of Understanding Concerning

Measures to be Taken for the Transfer, Security and Safeguarding of

Technical Information, Software and Equipment to the Ministry of

Defense to Enable Industry to Establish North Sea ACMI Range Display

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and Debriefing System Facilities in The Netherlands (No. 55 in Part B(1));

and

• Basic Exchange and Cooperative Agreement between the United States

and Estonia for Topographic Mapping, Nautical and Aeronautical

Charting, Geodesy and Geophysics, Digital Data and Related Mapping,

Charting and Geodesy Materials (No. 64 in Part B(1).

10.3 Section IX, paragraph 1 of the Surface Effect Ship MOU provides as

follows:

“Any disagreement regarding the interpretation or application of this MOU will be resolved by the Steering Committee and will not be referred to an international tribunal or third party for settlement.”

10.4 As stated in their answer to Question 9, A/NZ consider that the Surface

Effect Ship MOU is another agreement in Annex 47 which does not have a

connection to UNCLOS. It concerns military research.

10.5 Section XI, paragraph 1 of the US-Netherlands MOU provides as follows:

“Any differences regarding the interpretation or application of this MOU will be resolved by consultation between the Governments concerned, and will not be referred to an international tribunal or third party for settlement.”

As noted in their answer to Question 9, A/NZ consider that the MOU deals with the

issue of military cooperation and does not have any connection to UNCLOS.

10.6 Article X of the US-Estonia Agreement provides that:

“Disagreements between the Parties arising under or relating to this Agreement or any of the Implementing Annexes shall be resolved only by consultations between the Parties and shall not be referred to any individual, to any international tribunal, or to any other forum for settlement.”

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This Agreement also relates to military cooperation. It may have a remote

connection to UNCLOS because it deals in part with nautical charts. But the

connection is so indirect and tangential that it does nor bear on the present issue.

10.7 The existence of these negative dispute settlement clauses supports the

Applicants’ submission that Annex 47 does not provide any evidence of State

practice intending implicitly or silently to exclude Part XV jurisdiction. First, they

indicate that where there is an intention to exclude dispute settlement, even under

another treaty, the parties do so expressly. Such an intention cannot be implied

where it is not supported by the terms of the provision concerned or by other clear

and unequivocal evidence of State intention. Second, the provisions containing the

negative formula referred to by Sir Kenneth are contained in agreements which do

not have a connection, or only the most remote connection, to UNCLOS. They do

not purport to deal with disputes under UNCLOS, further supporting the Applicants’

submission that there is no evidence of State practice to exclude the dispute

settlement provisions of Part XV.

W M Campbell Tim Caughley

Agent for the Government of Australia Agent for the Government of New

Zealand

26 May 2000 26 May 2000