By: Luke DeTore
As the world turns its focus more sharply onto truly tackling issues of climate and the environment, the law surrounding them evolves not only in the way that it is written but in its codified goals. Throughout the history of environmental legislation, treaties and agreements have been the close relationship between wildlife management and the environment, through agreements like the Convention on the International Trade of Endangered Species. Along with legislation, conventions, and treaties like this there have been some attempts at global governance of fishing and fisheries management – however, it has mostly been delegated to regional authorities and agreements. Although this is the case, there are still some global institutions dedicated to governing and settling disputes surrounding fishing and territorial issues, namely the International Tribunal for the Law of the Sea (ITLOS). Established in the 1980s with the aim of enforcing and moderating disputes between states party to the United Nations Convention on the Law of the Sea, the ITLOS has heard and mediated a number of contentious cases throughout the years. This paper will examine the two cases heard by the tribunal that are specifically related to matters of fish stocks, which would be 1999’s Southern Bluefin Tuna Cases of Japan versus New Zealand and Australia, and the long-lasting 2000 Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean between Chile and the European Union.
Overview of the Legal Regime
In order to properly examine the cases mediated by the ITLOS, it is necessary to look at the international conventions and initiatives that form the basis of which arguments can be made. The following section is dedicated to this overview and will examine the United Nations Convention on the Law of the Seas and the supplementary policies that followed its adoption. The United Nations Convention on the Law of the Seas (UNCLOS) came into force in 1994 and brought with it a variety of changes to the previously customary rules of what were referred to as the “High Seas.” The UNCLOS gave an admirable foundation for future legislation to be added onto, with a large portion of its goals being to defer the actual numbers of regulation to regional fishery management organizations, or RFMOs. The United Nations Fish Stocks Agreement came shortly after to supplement it, and the two go hand in hand when looking at the current regulation of fisheries on the global stage. These two pieces of legislation were the first to apply minimum standards for management and for conservation of stocks. However, as previously stated both of them consistently refer to their goals as things states “should” do or seek through “appropriate regional organizations.” UNCLOS specifically established, in Part V (Art. 56) of the Agreement Relating to the Implementation of Part XI Of The Convention, the principle of sovereign rights in the Exclusive Economic Zone for “the purpose of exploring and exploiting, conserving and managing” resources that exist within it. This phrase is contradictory, however it allows for states to cover all possible sides when taking legislative action over their marine resources. This agreement codified an extension of 200 nautical miles from a state’s territory as an “exclusive economic zone,” (EEZ) for the purposes of fishing, and established basic principles surrounding the quotas of fishing for specific species – “highly migratory species,” and “straddling stocks.”
Articles 61 and 62 specifically look at conservation and utilization of living resources, respectively outlining measures that states should take in both realms of action. In Article 61, the language states that the states should use the best scientific available to them to make decisions on conservation matters and establish that states should prevent overfishing and endangerment of populations. Article 62, however, seems to slightly contradict that end, stating that the State shall: “promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61.” This could be interpreted as allowing more leeway for states to further exploit their resources as they have a legal provision to back their decision if an action contradicts the spirit and text of Article 61 while complying with Article 62. Article 63 continues that trend to govern the use and conservation of stocks occurring between the EEZs of multiple states, writing that states shall seek to conserve or seek to cooperate, without mandating that they actually do so. The same trend applies to Article 64, governing Highly Migratory Species. Overall, the United Nations Convention on the Law of the Sea applies a foundation that is both loose in its implementation but firm in its objectives when it comes to managing fish stocks. UNCLOS establishes the aim of the United Nations to be striking a balance between environment and economic well-being, attempting to prevent the two ends from achieving priority over the other. The cases that follow from the tribunal will beg the question of whether or not the International Tribunal for the Law of the Seas’ (ITLOS) implementations of these laws favor one or the other in its decisions.
After understanding the law that governs the following cases, it is necessary to understand the background of the Tribunal that mediated them and the mechanisms that allowed it to do so. ITLOS was founded in 1984 and established under the previously summarized UNCLOS, specifically in Part XV as one of four specified means for dispute settlement under the Convention. The Tribunal’s founding statute headquarters it in the “Free and Hanseatic City of Hamburg” in Germany. The Tribunal consists of 21 elected members from a pool of experts, with the criteria being fairness and expertise in addition to the prohibition on two individuals from the same member state serving at the same time. Members of the Tribunal serve for nine years at a time and are eligible for re-election. Article 13 designates that a quorum of members is established when 11 members are sat together and is required for any tribunal business to commence. Regarding the cases that this paper will look at, the provisions of both Special Chambers and Nationality of Members are especially important. In terms of special chambers, the Tribunal is able to create special chambers made up of at least 3 of its members, either as it sees fit for dealing with disputes or upon request by states who submit for a dispute. As per article 15, focusing on these special chambers:
“A judgment given by any of the chambers provided for in this article and in article 14 [Seabed Dispute Chamber] of this Annex shall be considered as rendered by the Tribunal.”
In terms of the nationality of members, the Tribunal chooses which members adjudicate over each case in addition to allowing the parties who are settling a dispute choose a member when their nationality is not represented on the bench. The two cases that will be discussed in this paper are the only two cases that have been discussed in the ITLOS directly focusing on the act of fishing and the management of fish populations – the others are related only tangentially to the act, for example a fishing vessel being detained by one nation and the dispute being filed by the nation whose vessel was detained. By focusing on a singular and specific issue in this way, it will be easier to determine whether or not a pattern is followed by the Tribunal’s judgement in which it favors conservation or utilization when deciding a dispute.
The Southern Bluefin Tuna Case (New Zealand and Australia vs. Japan)
The Southern Bluefin Tuna Case was launched in the summer of 1999 by New Zealand and Australia, each individually filing for a dispute against Japan concerning the depletion of Southern Bluefin Tuna Stocks. These three countries are engaged in the commercial fishing of said stock, and as per written communications to the tribunal state, New Zealand and Australia both wished to pursue an end to Japan’s “unilateral experimental fishing” program that they viewed as bringing possible “severe and irreparable damage” to the fish’s population. These proceedings were filed on 30 July, 1999 asking the Tribunal to grant provisional measures before an arbitral tribunal be created to settle the dispute between the three countries. Provisional measures, in this context, would mean that the Tribunal issues orders and measures that the states would seek to follow. The arguments presented by the parties, jointly by Australia and New Zealand and by Japan unilaterally varied in their legal angles. As the proceedings went on, New Zealand and Australia pointed to specific provisions and articles under UNCLOS that would allow the court to not only maintain jurisdiction, but to issue the provisional members they had requested. Chiefly among these arguments were the insinuations that Japan had violated Article 64 and 116 through 119 of UNCLOS. This claim argues that Japan violated UNCLOS not just in the provisions governing conservation in the EEZ, but violates the principles of conservation, optimum utilization, and cooperation on the High Seas as well. Japan’s main argument for the proceedings of this case was that, since the states were party to another convention (the Convention of 1993), such a tribunal would not have jurisdiction over this dispute and therefore should not grant any request by Australia and New Zealand for provisional measures. Over the month of August, the Tribunal heard these arguments as well as evidence from each state and came to a decision.
The process of the hearing was fairly quick, with the tribunal being established with no delays from Australia and New Zealand’s joint nomination of Ivan Shearer to the tribunal due to the lack of members of their Nationality on the bench. The hearing date was set by the first order of the Tribunal to be 18th August of 1999, and a decision was rendered with provisional measures nine days later on the 27th. The agents from the applicants were heard in court on the 18th of August, with Japan’s being heard on the 19th, and final submissions being given on the 20th. The argument presented by New Zealand and Australia under the oral minutes kept by the Tribunal essentially operated under three points for its legal basis. The first basis, under the 1982 agreement of UNCLOS and under previous laws and commentaries, argues that “it is clear from article 116 of the convention that the right of high seas fishery is a qualified one.” The second basis argues that the case is not about high seas navigation, thus any argument that one state is attempting to control another’s conduct on the High Seas is invalid; and the third legal basis focuses on the precautionary principle. In particular, the argument cites both legal works and previous cases taken by other organizations under UNCLOS, namely the World Trade Organization in the Shrimp-Turtle Case. This basis essentially is meant to define the issues at hand as evolutionary, as was done in the aforementioned case allowing for measures to be taken for preventative action rather than just based on the current verified state of affairs. The Applicants (New Zealand and Australia) continued their case by offering scientific backing for their concerns over population depletion, including that Japan already consumes an outsized share of the fish stock, the late maturity age of Southern Bluefin Tuna, and their consideration as a Highly Migratory Species under Annex I of UNCLOS. This establishes jurisdiction and a scientific basis for the arguments on top of the previously mentioned legal bases. The Japanese agents delivered their arguments the next day, essentially making the argument that the Tribunal did not have jurisdiction to settle this dispute due to the existence of the 1993 Convention, as well as the argument that their scientific evidence did not show that the continued experimental fishing programme would cause any further damage to the already depleted bluefin stocks.
After these hearings, the tribunal announced that an order would be handed out on the 27th, and the order was read in a public setting by President Mensah. The order handed down essentially acknowledged that the states did not disagree on much of the science, other than that the Japanese government did not believe its EFP to be detrimental to stocks. As there was no disagreement on the depleted and endangered nature of the Bluefin stocks, the Tribunal ordered a number of provisional measures to be taken. These measures include measures that Japan should end its experimental fishing program or include it under the previously agreed quotas between the three states. This ensures that there is no chance for the program to have an oversized impact in the future, although the catch for 1999 will be calculated as an EFP. In addition, it mandates that any future EFPs be counted towards the agreed upon total catch for a year, whether that be a newly negotiated total or the previously referred to one. In addition to the measures to be implemented just for the disputing states, the Tribunal mandated that the parties seek agreements with other States that fish for Southern Bluefins, as well as mandating that the three involved states resume negotiations for new agreements on the “conservation and management of Southern Bluefin Tuna.” These measures managed to accede to Japan’s main request in the event that the Tribunal took up jurisdiction and acted in the interest of the applicants’ arguments at the same time. In addition to balancing between the disputing parties, the measures seem to balance extremely well the principles of economic interest and conservation – using the principle of prevention as mentioned in the case by New Zealand and Australia.
The Swordfish Case (Chile vs The European Union)
In December of 2000, the European Union and Chile agreed to submit for a special chamber in the ITLOS for the resolution of a dispute over the conservation of Swordfish Stocks in the southeastern Pacific. The complaint was lodged by the Chilean government, stating that the European Community was violating articles 64 and 116 through 119 of UNCLOS, therefore the dispute was to be settled through the framework of Section XV. The European Community launched a response stating that Chile had in fact violated the articles relating to the high Seas governance, extending their sovereignty to the High Seas through Chilean Decree 598. The EC also accused the:
“Galapagos Agreement” of contradicting UNCLOS, and in addition to the questions of Chile’s extension of sovereignty, questioned whether the “jurisdiction of the special chamber extends to the issue referred to in paragraph 3 (c) above.”
This case takes a similar nature to that of the Bluefin Case, however the proceedings went much differently. Whereas in the Bluefin Case, the dispute went to the normal arbitrary tribunal, the Swordfish Case was given the permission for the Special Chamber to be created. The Special Chamber was established on 20 December 2000, composed of President Chandrasekhara Rao, Judges Caminos, Yankov, and Wolfrum, along with Judge ad hoc Orrego Vicuña. The special Chamber established a timeline that was far longer than that of the previously examined case, stating that if all went without problems, the proceedings would consist of a Memorial by each party within six months and a counter-memorial by each within three months after the first memorials.
Shortly after all of this, in March of 2001, the states submitted a joint request to suspend the proceedings through the Special Chamber due to their reaching of a provisional agreement concerning the dispute at hand. The parties deferred repeatedly, until 2009 – when they finally requested that the case be removed from the list of Cases by the tribunal due to the sides having agreed to a bilateral settlement. In the order decreed by the Tribunal following this notification, the related provisions to the Understanding between Chile and the European Union, as it was renamed in 2009 when the Treaty of Lisbon took effect, are explained. Following the precedent set not only by the Tribunal’s decision in the previous case examined in this paper, but the general spirit of the UNCLOS and those states party to it in their signature, the Understanding focuses heavily on conservation and the principle of prevention used by the Applicants in the Bluefin case. The settlement, as outlined in the Tribunal order performs a number of duties for the management of swordfish stocks including turning the provisional arrangement that was put in place to delay the tribunal proceedings into a:
“definitive commitment to cooperate for the long-term conservation and management of the swordfish stocks in the South Eastern Pacific.”
The agreement freezes catch levels at their historical peak, establishes a framework for information and scientific cooperation, binds European Union vessels to the understanding when fishing on the High Seas, and aims to include all relevant parties who fish within this stock of swordfish. The Understanding concerning the conservation of swordfish stocks in the South Eastern Pacific Ocean establishes a clear framework for the future and provides both preventative measures for the future and an obligation to expand the rules to other RFMOs to which the EU or Chile may be party. In light of the agreement reached, the dispute was removed from the Tribunal’s list of cases as requested – without ever having oral or written proceedings.
Comparison and Analysis
Both the Southern Bluefin Tuna Cases (Australia v. Japan, New Zealand v. Japan) and the Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile vs. European Union) contained similar disputes as well as similar arguments, however they differed in a few key aspects. On the surface, one of the main differing aspects is the way in which each state used the ITLOS. As pointed out by Ted McDorman in the Canadian Yearbook of International Law:
“[The disputants in the Swordfish Stocks case] agreed to utilize the ITLOS in order to deal with the merits of the dispute… In the Southern Bluefin Tuna cases, the disputing states avoided ITLOS for the merits of the dispute and proceeded to an arbitral tribunal.”
By requesting provisional measures, the parties in the Bluefish Cases avoided any litigation of whether or not the tribunal had jurisdiction, which coincidentally would come in 2000 when the arbitrary tribunal decided that it did not in fact have such jurisdiction without the consent of Japan, who had already stated that opinion publicly. In the Swordfish Case, the parties had used the framework of the ITLOS to attempt to view logistics such as whether or not their issues fell under the convention and were granted the Special Chamber that confirmed that they in fact did. However, their issues were resolved outside of the Tribunal through bilateral negotiation.
Existing literature and analysis of these cases did not take too closely a route as this paper has, which is now looking at the decisions and overall outcomes of each case to determine whether or not the Tribunal has shown a bias towards the Utilization of Living Resources or the Conservation of Living Resources in its adjudications. Upon the decisions and outcomes of the cases outlined within this paper, it appears that the tribunal has attempted to follow the Convention’s language as closely as possible. Within the provisional measures given to the disputants in the Bluefin Cases, it appears that there are provisions therein that regulate both of these sectors, seemingly evenly. It acknowledges the need for both scientific and economic exploitation of the resource, while also mandating that the existing regulation and cooperation be updated to reflect a deeper commitment to the conservation of their stocks. Although no judgement was taken in the Swordfish Case, one can see that the influence of customary law such as the Precautionary Principle – which was expressly written into the 1995 Fish Stocks agreement and touched upon in the issuance of provisional measures in the Bluefin Cases had an effect on the Understanding to which Chile and the European Union eventually agreed. The Understanding contains very similar language to that included in the measures prescribed by the Tribunal, most notably a provision outlining the commitment to expanded multilateral cooperation surrounding the stock of swordfish, in the same vein as the measure recommending expanded cooperation for the conservation of Southern Bluefin Tuna.
A main difference, outside of the use of the Tribunal, between the Swordfish Case and the Bluefin Cases were the arguments surrounding Jurisdiction. In the Bluefin Case, Japan completely denied the jurisdiction of the Convention, including the Tribunal, over their Experimental Fishing Program and catch quotas related to Bluefin due to the existence of a separate agreement between the three disputants. In the Swordfish Case, an opposite stance was taken by the European Union over the issue of the Galapagos Agreement. This question was never answered due to the swift entrance of a provisional agreement between the bloc and Chile; however, it poses a significant question as to how the Convention could be treated in the future in reference to similar disputes. If it is to be applied in the way the European Union would like it to be, the Convention holds precedence over other agreements – allowing them to be disputed on the grounds of compliance with it. The Tribunal effectively avoided this question by issuing conflicting rulings in the Bluefin Cases, both issuing provisional measures and denying itself jurisdiction over the dispute. The way in which it denied itself jurisdiction is most important when looking at this because it sets a precedent that a state must consent to its own investigation – meaning that if a claim is filed against a state that decides it does not consent, the Tribunal has no jurisdiction in the same way Japan managed to skirt the Bluefin Case. However, the Swordfish Case can be interpreted as having confirmed that the Convention precedes other agreements due to the granting of the Special Chamber, specifically related to the grievance filed by the European Union surrounding the Galapagos Agreement.
In the case of international law governing fishery management and conservation, there are large gains still to be made. There are questions of institutional integrity, especially regarding the dispute resolution mechanisms that are analyzed above. There is a question of the dissolution of sovereignty, especially when states have disputes over the previously un-regulated realm of the High Seas – however the times have changed, and it seems that the law could be changing with them. The Tribunal has been, as per these two cases and their respective outcomes, fairly balanced between the challenges of economic stability and the maintenance of global living resources at sea. However, it has managed to set and maintain important precedent, particularly in modern times when it comes to the Precautionary Principle that allows and encourages states to take action that accords with or exceeds the obligations that are codified under United Nations conventions. While neither Swordfish or Bluefin truly revolutionized the practice of international law when it comes to fisheries, they serve as a jumping off point for future adjudication and negotiations, whether that be through the existing Tribunal for the Law of the Sea or through agreements that have not yet come into existence.
 In The Law of the Sea: Official Texts of the United Nations Convention on the Law of the Sea of 10 December 1982, and of the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Index and Excerpts from the Final Act of the Third United Nations Conference on the Law of the Sea. New York: United Nations, 1997.
 Ibid, Art. 56
 Ibid, Art. 56
 Ibid, Art. 62
 “Statute of the International Tribunal for the Law of the Sea.” International Tribunal for the Law of the Sea. United Nations. Accessed May 3, 2021. https://www.itlos.org/fileadmin/itlos/documents/basic_texts/statute_en.pdf.
 Ibid, Art. 13
 Ibid, Art. 15
 Southern Bluefin Tuna Cases (New Zealand vs. Japan, Australia vs. Japan), Cases No. 3-4. Order of 27 August, 1999. https://www.itlos.org/securedl/sdl-eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.eyJpYXQiOjE2MjAwODMzNTgsImV4cCI6MTYyMDE3MzM1NywidXNlciI6MCwiZ3JvdXBzIjpbMCwtMV0sImZpbGUiOiJmaWxlYWRtaW5cL2l0bG9zXC9kb2N1bWVudHNcL2Nhc2VzXC9jYXNlX25vXzNfNFwvcHVibGlzaGVkXC9DMzQtTy0yN19hdWdfOTkucGRmIiwicGFnZSI6NjJ9.JepwPngR0eLi_r-JxZ2G0J_0QCnxV3hwq8CY1VWXno0/C34-O-27_aug_99.pdf
 The same case and orders have been cited, however the written documentation and minutes of the hearing appear on the same webpage as the previous citation.
 See footnote 7.
 See footnote 7. Quote comes from written minutes of the 18th August, 1999.
 This case was arbitrated by the WTO, and is used as a basis for the Precautionary Principle. Ruling adopted in 1998.
 See footnote 7.
 Case concerning the conservation and sustainable exploitation of Swordfish stocks in the South-Eastern Pacific Ocean (Chile and the European Community.) Case 7. https://www.itlos.org/en/main/cases/list-of-cases/case-no-7/
 Ibid. Order 2000/3 of December 2000.
 Ibid. Page 154, par. 2-3.
 Case concerning the conservation and sustainable exploitation of Swordfish stocks in the South-Eastern Pacific Ocean (Chile and the European Community.) Case 7. Order 2001/1 of 15 March 2001.
 Case concerning the conservation and sustainable exploitation of Swordfish stocks in the South-Eastern Pacific Ocean (Chile and the European Community.) Case 7. Order 2009/1 of 16 December 2009. Paragraph 12(Section 1).
 Understanding concerning the conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (2009). Official Journal, L155. 22 June 2010. Pp 3-9.
 Ted L. McDorman, “An Overview of International Fisheries Disputes and the International Tribunal for the Law of the Sea,” Canadian Yearbook of International Law 40 (2002): 119-150