The Southern Bluefin Tuna cases: the precautionary approach and conservation and management of fish resources

Abstract

In the Southern Bluefin Tuna cases, the International Tribunal for the Law of the Sea ordered Japan immediately to refrain from conducting an experimental fishing programme. The unprecedented character of the case lies in the fact that the Tribunal applied the precautionary approach to fisheries although it did not expressly say so. The precautionary approach, however, is a principle which has found strong application in international environmental law within the last decade. Its status as regards customary international law is disputed and remains unresolved. However, the character of this case causes one to ask whether the Tribunal's Order was the missing link to argue that the precautionary approach to fisheries has evolved into a norm of customary international law, and, if so, what implications the Order may have for the determination of its content. In addition, it serves as a good example to illustrate the application of public international law on a broader scale as twisted between established legal norms and morality and common sense.