In submitting their disputes over environmental harms to an international court or tribunal the parties to the row seek a remedy for the issue that triggered the action.  Environmental disputes are a relatively recent class of cases that have been litigated in international courts.  Indeed, it has only been over the past two decades that these disputes have found their way onto the dockets of international courts. 

On the other hand, the adjudication of environmental and natural resources cases by arbitral tribunals has long-standing origins.  Four of the earliest recorded cases are the arbitrations of the Bering Fur Seals Case (US/UK) (1893), the Chamizal Arbitration (US/Mexico) (1911), The Trail Smelter case (US/Canada) Arbitration (1941) and the Lac Lanoux case (Spain/France) (1957) dispute.  The first two disputes occurred prior to World War II, while in the Trail Smelter Case the United States instituted proceedings against Great Britain on behalf of Canada under the parties’ Boundary Waters Treaty, although the Permanent Court of International Justice was still nominally extant.  In the Lac Lanoux dispute the parties agreed to arbitrate the case.  They certainly could have sought to have their dispute heard by the International Court of Justice – which at the time had been in existence for eleven years.  Each of the foregoing arbitrations yielded a remedy.  In contrast, the International Court of Justice (“IJC”) has to date, at best, provided facile or questionable remedies in the environmental disputes that it has adjudicated.

         This post is  devoted to the adjudication of environmental issues that have come before the International Tribunal for the Law of the Sea (“ITLOS”).

The International Tribunal for the Law of the Sea (“ITLOS”) was established in 1982 by the United Nations Convention on the Law of the Sea (“UNCLOS”).  However, the Convention did not enter into force until November 16, 1994.  To date, UNCLOS has 161 party states, including the European Union.  The first case that ITLOS heard was in 1997.

To date, only the twenty-three cases[1] have been submitted to the Tribunal, over its eighteen year lifespan.  The majority of these disputes have been prompt release cases,[2] i.e., vessel seizure and release disputes.  Of relevance here, there are four environmentally related disputes.  These include three contests involving fisheries: Cases nos. 3 & 4: The Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures; Case No. 7: The Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / European Community); and Case No. 10: The MOX Plant Case (Ireland v. United Kingdom), a request for provisional measures.[3]  We now move to a discussion of the three disputes.

  1. The Southern Bluefin Tuna Cases (New Zealand Japan; Australia v. Japan)

The Southern Bluefin Tuna Cases commenced on July 15, 1999, when Australia and New Zealand filed suit against Japan, for the latter’s violation of the parties’ Convention for the Conservation of Southern Bluefin Tuna.  The convention was executed by the three parties in 1993, and set catch limits due to declining populations of Southern Bluefin Tuna (“SBT”).  In 1998 Japan unilaterally began to take quantities of SBT beyond its agreed catch limits under what it termed as its “experimental fishing programme”.  But for Japan’s designation its fishing for SBT would be illegal. 

Following a breakdown of negotiations New Zealand filed a “request for the prescription of provisional measures” against Japan, on July 30, 1999.  Among its demands, New Zealand sought an order against Japan for the following relief: to (1) immediately cease its unilateral experimental fishing for the Southern Bluefin Tuna; (2) that Japan restrict its catch to its national quotum as the parties last agreed, and reduced by the amount taken in the course of its unilateral experimental fishing; and (3) that the parties act consistently with the precautionary principle (caution and vigilance) in fishing for the Southern Bluefin Tuna pending final settlement of the dispute.

The ITLOS’ President, Judge Thomas A. Mensah, pursuant to Articles 27, [4] and 90, of the Tribunal’s Statute, fixed August 18, 1999 as the date for the hearing on New Zealand’s request.  Thereafter, on August 27, 1999, the Tribunal issued its Order vis a vis the provisional measures.  The Tribunal made the following findings:

(c) taking unilateral action contrary to the rights and interests of New Zealand as a coastal State as recognised in Article 116(b) and allowing its nationals to catch additional SBT in the course of experimental fishing in a way which discriminates against New Zealand fishermen contrary to Article 119 (3);

(d) failing in good faith to co-operate with New Zealand with a view to ensuring the conservation of SBT, as required by Article 64 of UNCLOS;

(e) otherwise failing in its obligations under UNCLOS in respect of the conservation and management of SBT, having regard to the requirements of the precautionary principle.[5]

In the end by a vote of 20-2 (with an ad hoc judge jointly appointed by Australia and New Zealand, the Tribunal granted the prescriptive measure, and ordered Japan to immediately stop its experimental fishing programme.  Interestingly, the judges in an unprecedented decision upheld the precautionary approach to protect the SBT fisheries, as well as the overall marine environment in the region where the fishing was taking place.  This relatively early decision was of course contrary to the ICJ’s denial of this remedy in its Gabĉikovo-Nagymaros Project Judgment.

The Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / European Community)

In the Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / European Community), the parties settled their dispute before it could be heard.  The case arose out of a request by Chile and the European Community, that the Tribunal establish a Special Chamber to resolve their dispute, which centered on the sustainable fishing and conservation of swordfish stocks in the Southeastern Pacific Ocean, adjacent to Chile.  By an Order dated December 20, 2000, the ITLOS formed the chamber.

Two primary issues were raised before the Special Chamber was whether the European Community complied with its obligations under the United Nations Convention on the Law of the Sea (“UNCLOS”) to safeguard that the fishing vessels flying the flag of any of its member states made an effort to conserve swordfish in the high seas adjacent to Chile’s exclusive economic zone (“EEZ”); and whether a Decree issued by Chile which, claimed to apply a swordfish conservation measure instituted by the Chilean Government was in breach of UNCLOS, and whether an agreement, known as the Galapagos Agreement, was negotiated within the UNCLOS framework.

The parties deferred the proceeding a number of times, until December 15, 2009 they informed the chamber that they were withdrawing the suit, as they had settled their differences.

The MOX Plant Case (Ireland v. United Kingdom) will be discussed in the next post.

 

[1]           See generally, International Tribunal for the Law of the Sea, Cases (2015), https://www. itlos.org/en/cases/.

[2]           Ibid. at List of Case, https://www.itlos.org/en/cases/list-of-cases.

[3]           Ibid.

[4]           Article 27, Conduct of Case, provides in pertinent part that “[t]he Tribunal shall make orders for the conduct of the case, decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence.”  See Statute of the International Tribunal for the Law of the Sea (undated), https://www.itlos.org/fileadmin/ itlos/documents/basic_texts/statute_en.pdf.

[5]           Order at ¶ 28.1 (c) – (e) (Aug. 27, 1999), https://www.itlos.org/fileadmin/itlos/ documents/cases/case_no_3_4/Order.27.08.99.E.pdf.  (Emphasis added).

 

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