Landmark Decision - New Zealand tuna fishing case (28 August 1999)
The Minister of Foreign Affairs and Trade, Don McKinnon and the Minister of Fisheries , John Luxton today welcomed the decision by the President of the International Tribunal on the Law of the Sea to uphold New Zealand's case against Japan's increasing catch of Southern Blue Fish tuna.
The judgment was delivered in Hamburg early on Saturday morning NZ time.
"This is a landmark decision and fully justifies our decision to take the dispute to this international tribunal," the Ministers said.
"The result has benefits for the conservation of high seas fisheries that will go well beyond the parameters of this case. The key element in the decision is that Japan will no longer be able to act unilaterally in setting up a scientific programme as a means of securing a significant extra tonnage of this extremely vulnerable and valuable resource."
The decision is in the nature of an interim injunction prescribing protective measures pending a decision by an Arbitral Tribunal. The key elements of the judgment are:
- all fishing must be within previously agreed quotas
- any catch for scientific purposes must be counted against quota (In practical terms this means that Japan, which currently catches a little over 6000 tonnes, cannot take one more tonne let alone another 2000 tonnes under the experimental fishing programme.)
- the parties are required to submit a first report by 6 October to the Hamburg-based Tribunal (ITLOS) on their compliance with the provisional measures
- the parties must resume negotiations without delay to reach agreement on the issues and to encourage non-parties which catch SBT to also take measures to ensure conservation of the stock.
The Ministers said it was notable that that the full court bench of 22 judges found overwhelmingly in our favour.
"This was not an instance of a divided court - the count for New Zealand and Australia never fell below 18 to 4. In fact 6 judges in a separate opinion went further and suggested a reduction in catch to assist the stock to recover over the medium to long term.
"The Tribunal has also urged the parties to work constructively together in the Southern Bluefin Tuna Convention pending a final decision on the merits of the case. We attach a great deal of importance to that agreement. It represented a significant step forward in the management of SBT when it was established and it is vital for that fishery that the Convention operates effectively. We are certainly prepared to commit ourselves to ongoing work with Australia and Japan to make the Convention operate effectively for the proper management and conservation of this depleted stock.
"We look forward to working further with Japan under this Agreement and are confident that we can now do so and that this area of our bilateral relationship with Japan will be strenthened as a result of this judgment. Needless to say, our bilateral relationship with Japan is one to which this Government attaches a great deal of importance.
"But the decision sends a clear message to Japan that all fishing for SBT must be within quotas previously agreed under the regional bluefin tuna agreement.
The Ministers said there were some features of the Tribunal's decision that are of significance beyond this particular dispute.
"That the Tribunal accepted that it had jurisdiction to order provisional measures in this case is important in itself. Without going into the legal detail what this does is to send a firm message that regional fisheries agreements do not replace or override the obligations states have accepted under the Law of the Sea Convention."
"They must act consistently with those broad obligations at all times including in the work of regional fisheries bodies or risk being called to account in international dispute settlement processes. This is very important and, given the state of world fisheries, a much needed encouraging sign," the Ministers observed.
"A related and equally key point is that the Tribunal has signalled clearly that the law of the sea obligations relating to cooperation and conservation of high seas living resources have real meaning and content. These are of fundamental importance for present and future generations.
They are expressed in necessarily general terms but the Tribunal is clear that they are important and can be given effective content in particular cases."
Additional background information:
New Zealand and Australia brought the case against Japan last month. It was heard by the International Tribunal for the Law of the Sea (ITLOS), a permanent court which is based in Hamburg.
The aim in taking this action was to try to restrain Japan's experimental fishing programme and restrict Japanese catch within the last agreed quota level. The EFP would have involved Japan's taking more than 2000 tonnes above its quota - or about 30% over and above quota.
"The Government simply wasn't prepared to let that action go unchallenged", said Mr McKinnon. "You need to remember," the Minister continued, "that this was Japan's second EFP. The first, in which 1400 tonnes was caught, was also unacceptable to the Government and brought us clearly into dispute with Japan. As befits two countries with such a close and important relationship, we tried to negotiate a way of ending the dispute. Those negotiations broke down when, with very little warning, Japan resumed experimental fishing at an even higher level of catch."