The Other Australia/Japan Living Marine Resources Dispute

Abstract

In 2000 an arbitral tribunal formed under Annex vii to the United Nations Convention on the Law of the Sea denied its own jurisdiction to hear the case brought against Japan by Australia and New Zealand over Japan’s unilateral experimental fishing programme for southern bluefin tuna. Despite the criticism the tribunal’s reasoning attracted, it was widely supposed that the applicants would have failed on the merits because of the reluctance of international courts and tribunals to delve into scientific matters, as would have been necessary with the dispute’s underlying cause being the parties’ scientific disagreements regarding both the tuna stock itself and the nature and risks of the programme. In 2014, however, the International Court of Justice showed no such reticence in deciding in Australia’s favour the case against Japan’s scientific whaling, based partly on flaws it identified in the design of that experiment. Reviewing the evolution in the tuna experiment’s design, the propositions it was designed to (dis)prove and the use to which Japan proposed to put that proof, this paper suggests that similar factors were at play in both disputes and that a similar outcome of the tuna case, though not inevitable, would have been amply justified.