The Decision of the International Tribunal on the Law of the Sea Disregarded Science

The Decision of the International Tribunal on the Law of the Sea Disregarded Science

The following is the view of the Fisheries Agency of Japan regarding the Decision of the International Tribunal on Law of the Sea on the issue of conservation of the Southern Bluefin Tuna (SBT), which coincides with the view of the Japan Fisheries Association.

The Decision of the International Tribunal on the Law of the Sea Disregarded Science

September 16, 1999
Masayuki Komatsu (Tel 81-3-3591-1086 Fax 81-3-3502-0571)
Fisheries Agency
Government of Japan

1. Sustainable use of marine living resources
The best approach to marine living resources is not extreme protectionism or a ban on fishing. The purpose of conservation for marine living resources should be for sustainable use. Developing nations with coastal lines and oceanic nations such as Japan will not accept the concept of protectionism for protection's sake. The sea's bounty is an important and invaluable source of energy and protein. It is a gift from Heaven that we human being must utilize to survive. The same applies to the Southern Bluefin Tuna (SBT).

A tuna that migrates through the Southern Hemisphere, SBT ranks with the northern bluefin tuna as one of Japan's favorite sources of high-quality sashimi and sushi fishmeat. In the early 1980, Japan, Australia, and New Zealand together caught a total of 40,000 tons. However, stocks declined because Australia's purse-seine vessels caught large numbers of juvenile, small tuna (i.e., those under 2 years of age and weighing approximately less than 10-20 kilograms). In response, Japan actively helped conserve and restore those stocks by providing the Australian fishing industry with massive sums of financial resources and technical support to reduce catches of juvenile and small-size SBT.

All three nations reduced their total allowable catch, from 38,650 tons in 1985 to 11,750 tons in 1989, but it was Japan that contributed the most to stock conservation and recovery by accepting the largest percentage of reduction --74%--reducing its national allocation from 23,150 tons to as low as 6,065 tons. This reduction squeezed the opportunity of fishing operations, and created the economic difficulties. Together with reductions in the catches of juvenile and small fish by Australia, this drastic reduction of the above-mentioned had an immediate effect, and a recovery was observed in stocks, primarily juvenile and small-size SBT.

2. SBT Management should be Based on Science: World prominent Independent Scientists selected by all three nations for CCSBT Support Experimental fishing program as the practical good

At the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), Japan officially proposed the increase of TAC for SBT at the first time in 1995, but both Australia and New Zealand have rejected such proposals on the grounds that the increase of TAC by even one fish would increase the danger of extinction. This difference in the view is attributable to a different approach of assessment of stocks. Australia and New Zealand claimed what the decrease of TAC was due to the decrease in SBT; that no SBT had existed in the lost fishing grounds and season. However, Japan believed that the decrease of TAC and the national allocation did not reflect scientific fact in that it was kept excessively low with linkage of Australian policy that Japan should accept such a linkage permission for Japanese fishing vessels to operate within Australia's 200-nautical-mile EEZ. In short, Japan claims that SBT did in fact exist in past and lost fishing grounds and seasons. At the CCSBT, Japan proposed joint Experimental Fishing Program (EFP) in order to narrow that gap on the scientific view on the stock assessment between Japan on the one hand and Australia and New Zealand on the other by collecting scientific information while expecting to reach a consensus on stock assessments.

The proposal for join EFP was first made in 1996, and when a request for consideration was officially provided to the 1997 Scientific Committee. Both Australia and New Zealand refused the request let alone even discuss any single element of EFP and have since then continued to criticize and reject the draft of Japan's joint EFP without submitting any concrete counterproposals of their own. In response to these two nation's counterproductive use of their veto power for over three years, Japan last year reluctantly decided to implement the EFP on SBT under the responsibility of the Japanese government. The results of said EFP verified Japan's assessment that SBT stocks have recovered considerably. Nonetheless, Australia and New Zealand have persisted in their narrow-minded refusal to accept those results on the grounds that the EFP was carried out unilaterally. Before implementing this EFP, Japan had clearly declared that the amount of the EFP catches shall be subtracted from Japan's national allocation should the results show that the EFP take would reveal that the stocks were being in a bad shape and it had a negative impact.

This view of Japan's is concurred by the view of four independent scientists (1 American, 2 Canadians, and 1 Japanese) selected by consensus by Japan, Australia, and New Zealand. Thus grounded on scientific evidence and an appropriate design, the EFP sought to positively contribute to better management for both SBT stock and further scientific progress. Nonetheless, Australia and New Zealand have maintained an unreasonably pessimistic views toward these stock assessment. Against the backdrop of the environmental protection movement, they advocate a fishing ban to appeal to public sentiment and give the impression of being virtuous, but in fact their opinion ins not justified by scientific evidence.

While advocating for stock depletion Australia has increased its catches of juveniles and small fish-an approach that has a strongly negative impact in terms of the sustainable use of stocks - while also hypocritically selling those catches to the Japanese market.

At the CCSBT, we have continuously proposed fisheries management that is based on objective, scientific evidence.

3. The 20 % Reduction in the distant water longline tuna fisheries deserves World praises
All coastal lines being surrounded by the sea, Japan has demonstrated global leadership in the protection and sustainable use of marine stocks. Japan believes that to preserve the world's fisheries stocks for future generations, it is important to reduce excessive capacities of fishing vessels prevent the over - development of marine and coastal areas and actively protect the sea and marine stocks from pollution and other threats. With the overwhelming support and under the auspices of the Food and Agriculture Organization of the United Nations (FAO), Japan held the International Conference on the Sustainable Contribution of Fisheries to Food Security at Kyoto, at which the Kyoto declaration and the Plan of Action incorporating the aforementioned objectives were adopted by unanimous decision. In response, the FAO in February 1999 adopted the International Action Plan for the Management of Fishing Capabilities, calling for a 20-30% reduction in the world's distant water tuna longline fishing fleets.

The only country to respond to such a call earnestly, promptly, and with concrete action was Japan. This year, Japan confiscated and scrapped 132 of its 663 distant water tuna long fishers (or 20%) by scrapping vessels and by the confiscating of permits. In face of overwhelming hardships, the regional economies centered on Japan's tuna longline fisheries, as well as the displaced crew members and their families, are searching for the means of economic recovery. It is hoped that this step will some day lead to the appropriate conservation and management and the sustainable use of tuna stocks. It is completely mistaken to fear that this will give the impression that "Japan is depleting the tuna stocks." That Japan, more than any other nation, is fervently committed to the protection and sustainable use of tuna stocks is well understood and lauded by the U.S. and FAO member nations.

4. The Decision of the International tribunal on the Law of the Sea disregard the science Australia and New Zealand appealed to the International Tribunal on the Law of the Sea to have Japan's EFP stopped. Although this act contravened the provisions of the Convention for the Conservation of Southern Bluefin Tuna and constituted and abuse of the provisions of the United Nations Convention on the Law of the Sea, the Tribunal nonetheless issued its ruling without giving the due consideration of the fact that Australia's and New Zealand's long years of use of their veto at the CCSBT had prevented Jana from collecting the necessary scientific data; that the research was the only necessary means of collecting scientific information; that Japan's research had no negative impact whatsoever on tuna stocks, which were already recovering, and that Japan had pledge to subtract all said removal of catches by EFP from its national allocation in the event that any negative impact became evident. It is unfortunate that the Tribunal's ruling seemed to focus only on the fact that the EFP had been implemented unilaterally by Japan, without the agreement of Australia and New Zealand. Rulings such as this one could even encourage contempt for the activities of regional fisheries management organizations, and could even bring to naught Japan's continued, proactive cooperations with the activities of the CCSBT. This trend, if it continues, would encourage nations being dissatisfied with activities of regional fisheries management organizations to turn instead to the International Tribunal on the Law of the Sea, thereby undermining the authority of, and potentially leading to the collapse of, those regional fisheries management organizations, whose functions are already being paralyzed by the disorderly and non-compliance fishing of nonmembers. Australia and New Zealand has singled out Japan, which has diligently cooperated as a member of the Commission for the Conservation of Southern Bluefin tuna, while failing to call on nonmembers Korea, Indonesia, and Taiwan to halt their fishing activities. This is a major problem that has exposed the limits and the contradictions of the United Nations Convention on the Law of the Sea.

5. Sustainable Use and rectification of Extreme Environmental Protectionism
Japan will continue to plead the correctness of its scientifically justified position. Permitting this extreme and fanatical protectionism could impede the appropriate implementation of the United Nations Convention on the Law of the Sea and the sustainable use of marine stocks.

It is a mistake to refuse the use of an abundant, sustainable usable stock mis-stating that stock is endangered, harvesting is cruel or to advocate protection for the sake of protection, treating stock as a symbol of environmental protections. Such actions must be avoided and corrected. In other words, the SBT must not be symbolized like the whales, 760,000 of which now live in the Antarctic Ocean alone but whose use as a stock is denied even although they could be utilized in a completely sustainable manner.

6. Japan was to accept this ruling of the provisional measures for the time being until such a time for the Arbitral tribunal to turn over or modify the measures. For example, Japan is fully committed to payback 1999 EFP catches (approximately 2,200 mt) from both 1999 and 2000 year ceilings of Japan's national allocation of 6,065 tons in accordance with Paragraph 90.1.(c).

Japan is further pleased to announce its full commitment to abide by all other part of Paragraph 90, too, whereas, it was regrettable Australia declared that it would continue to keep out the Japanese fishing vessels of all Australian Ports, and keep rejecting the commencement of the bilateral negotiations. Both of which were initiated as a retaliation for the Japan's unilateral implementation of 1998 EFP. This policy of Australia should revoke immediately in accordance with Paragraph 90.1.(a).