Whale Wars Are Now “The Whale Cases”: Australia Announces ICJ action Against Japan (Corrected)

by Julian Ku

This is a bit of a surprise, at least its timing.  Stories I had read suggested any action would be delayed until after upcoming International Whaling Commission meetings, or even later. But here goes:

Australia says it will take Japan to the International Court of Justice because of Japan’s whaling activities, which Tokyo says are for scientific purposes.

Australia’s foreign minister, environment minister, and attorney-general announced Friday they will file papers with the ICJ next week.  Australian Prime Minister Kevin Rudd warned earlier this year that he was considering the move if diplomatic means failed to stop Japan’s hunt.

It is likely that Australia’s arguments will track the Sydney Report of Independent International Experts, or at least the part which recommends a challenge to Japan’s interpretation of the International Convention on Whaling.  The ICJ’s jurisdiction will be based on compulsory jurisdiction and not by special agreement, I believe, since both Australia and Japan have (more or less) accepted the ICJ’s compulsory jurisdiction.

Japan might be in a bad mood these days, having recently been browbeaten by the U.S. into accepting the continued presence of a U.S. military base on Okinawa.  I’m sure their government is not excited to face another Western power harassing them.  Japan has never, as far as I know, been involved directly in any ICJ proceeding, certainly not as a respondent.  So I don’t expect the Japanese to fold easily here.  Indeed, I expect Tokyo is currently amassing their considerable legal talent to prepare for Japan’s first ICJ case.  There won’t be any advantage in legal advocacy here for Australia, although it is worth pointing out that there are no Japanese judges on the ICJ right now. [Due to the hazards of late-night blogging, I somehow forgot that Judge Hishashi Owada, a Japanese national,  is the current president of the ICJ! Whoops! Luckily, Bruno Simma, also a judge on the Court, corrects my brain cramp in the comments below. Thanks Judge Simma! I take my well-deserved lumps on this error from readers below as well. Must get more sleep before blogging on this case in the future.] There are no Australian judges either, but there is a New Zealander (Kenneth Keith).

As this editorial points out, though, the real risk seems to lie with the Australians.  After all, they could very well lose this case, and Japan’s vindication would lead to more whaling, not less.  That would be a much worse result than the status quo (from the Australian perspective). So I guess they must be pretty confident they will prevail.  Hopefully, we’ll get to see how this all pans out.

http://opiniojuris.org/2010/05/29/whale-wars-are-now-the-whale-cases-australia-announces-icj-action-against-japan/

14 Responses

  1. Not clear that having a judge from New Zealand gives Australia any advantage. There’s this All Blacks-Wallabies thing going on.

  2. No Japanese judges on the ICJ right now? That will come as a surprise to its current President, Judge Hisashi Owada. And if there had not been, Japan would of course have had the right to appoint an ad hoc judge, just as Australia will have. I don’t understand why there “won’t be any advantage in legal advocacy here for Australia”, as states can obviously choose whether to bring a case before the ICJ or not; Australia probably feels it has something to gain then.

  3. No Japanese judges on the ICJ right now? That will come as a surprise to its current President, Judge Hisashi Owada. And if there had not been, Japan would of course have had the right to appoint an ad hoc judge, just as Australia will have. I don’t understand why there “won’t be any advantage in legal advocacy here for Australia”, as states can obviously choose whether to bring a case before the ICJ or not; Australia probably feels it has something to gain then.
    +1

  4. although it is worth pointing out that there are no Japanese judges on the ICJ right now.

    No Japanese judges on the ICJ right now? That will come as a surprise to its current President, Judge Hisashi Owada.

    Now that is hilarious. Although the President only gets a tie-breaking vote in judicial business if the vote is tied, so maybe that’s what Julian was getting at.

  5. No Japanese judges on the ICJ right now?
    WTF? Who is this Julian Ku?

  6. Response…
    Julian, I follow certain IL blogs with great interest, among them OpinioJuris, even though I have decided not to take an active part as long as I will be on the Court. However,  I decided to make an exception in the present instance because I was a little, let’s say, shocked when I read that you didn’t find a Japanese national on the bench.
    Now with regard to a possible case brought by Australia against Japan: according to Rule 32(2) of the Rules of Court, President Owada would not be allowed to preside this case and according to Rule 13 this function would devolve upon the Vice-President, that is, Judge Tomka.
    Otherwise: my compliments to OpinioJuris – I owe to it lots of good entertainment and interesting news.

  7. Although Judge Simma (and others) have made the basic point already – the phrase “won’t be any advantage in legal advocacy here for Australia, although it is worth pointing out that there are no Japanese judges on the ICJ right now” really makes one wonder about the prerequisites for authorship on this blog:

    – there is, of course, a Japanese judge on the Court (and has been for all but 5 of the last 50 years);

    – article 31 of the Statute of the Court provides, in any case, that a party that does not have a national on the Court may appoint a judge ad hoc; and

    – more generally, judges do (though it may come as a surprise to this author) even find against their own states from time to time.

    A little learning, here, would be an advisable thing.

  8. I am most curious to see how Australia plans to overcome some pretty clear language in the Whaling Convention that permits scientific whaling and leaves a wide range of discretion to, in this case, Japan. Let’s not forget that the intent behind the treaty was to preserve whale numbers for the benefit of the whaling industry not to outlaw whale hunting altogether. At least that’s how it was in the beginning anyway. I think it’s also worth pointing out that Australia’s declaration accepting the ICJs compulsory jurisdiction has some curious language pertaining to its EEZ. Depending on how you read it, it might seem to exclude it from the ICJ. If so, this would kill any EEZ argument as Japan can simply invoke Australia’s own declaration against it.

  9. HI Judge Simma and everyone,

    Sorry for the brain cramp on Judge Owada, whom I even had a chance to meet last summer. But somehow I got it in my mind that he had already retired. Apologies to everyone on this point and thanks to Judge Simma for pointing out that President Owada would not be able to sit on this case in any event.
    Thanks for reading, Judge Simma, and even correcting! Will try to blog on the ICJ with more accuracy when I have more sleep.
  10. Julian,

    You still seem not to have gotten enough sleep. Despite your latest comment, Judge Owada WILL be able to SIT on any case involving Japan, he just wouldn’t be able to PRESIDE over it. As Judge Simma explains, that role would devolve on Judge Tomka. Now off to bed with you.

  11. I wonder who Australia will get as counsel.  Here’s hoping for Crawford…

  12. this is completely off target but i am watching whale wars right now and i dunno if anybody has thought of doing research on how whales communicate and set up bouys around where the japanese hunt that could send out an audio signal that could keep the whales out of the japanese hunting grounds…im not sure how much they move around the ocean while they are whaleing but bouys can easily be moved

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