Whale Wars Update: The ICJ Is Not Exactly Rushing to Issue a Judgment

by Julian Ku

I was struck by this line from an editorial in an Australian paper about the latest clashes between Sea Shepherd (e.g. the Ninth Circuit’s “pirates”) and Japanese whalers:

[T]hat the International Court of Justice is expected to hear Australia’s case to shut down the Antarctic hunt later this year.

Three years after the case began,  this hearing can’t come soon enough.

I agree.  The ICJ judgment will not come down anytime before the spring of 2014.  I know this is a complicated case but the timetable for this ICJ decision is really unacceptable.  The original application was filed in 2010. If everyone is lucky, a decision will be issued a year from now, four years after the original application. (It could be longer).  (I have been beating this dead horse for years, but I think I am still right about it).

No doubt part of the problem is that the parties (Australia and Japan) have not sought to expedite this process.  The original scheduling order gave each party ten months to make their written submissions.  So Australia filed their submission in May 2011, and Japan had until March 2012 to file their response.
I suppose part of the idea behind this slow process is to give the dispute time to cool and perhaps even to resolve itself.  But in this case, the dispute has really only intensified. Delay is not really serving anyone’s purpose here.

4 Responses

  1. Julian, you’re coming off as very ignorant here. The speed at which the ICJ approaches cases is set largely by the Parties. In this case, each Party requested ten months to prepare their first-round written submissions (see Order of 13 July 2010: Memorial in May 2011, Counter-Memorial in March 2012). No second-round submissions were requested, but then New Zealand requested to intervene in November 2012. The Court determined that issue in early 2013, and now New Zealand’s written observations are due tomorrow (see Order of 6 February 2013), and the Parties may have a chance to respond in writing. The timing of the further proceedings are not yet public, but at this point all of the written submissions have not even been furnished by the Parties. Once the written submissions are in and the Parties’ lawyers and governments have had sufficient time to study them, there will be oral hearings, after which the Court will start its deliberations.

    Ten months for the written proceedings is not at all unusual. Between 6-12 months is standard, and often there are two rounds of written submissions. Remember, this is not just a dispute between private parties; these disputes often entail far-reaching archival research by numerous government agencies, the production of written submissions spanning hundreds of pages, with annexes spanning thousands–sometimes tens-of-thousands–of pages. And all of this has to be coordinated among numerous top lawyers (each with their own view of how the case should be presented) and approved by officials at multiple levels of the governments. In other words, each written submission requires a lot of work. Even at six months per submission, that’s an average of two years of waiting (there are often two stages of submissions)–plus enough time to study the final written submission–before the procedure even reaches the oral hearings. It is only at this stage that the procedure outlined in the Resolution concerning the International Judicial Practice of the Court begins. As that resolution shows, there are a number of stages of both written and oral deliberation that occur internally, all which requires coordination among up to 17 judges, and which is aimed at reaching a per curiam opinion that best expresses the views of the Court as a whole, rather than an opinion written by a single Justice (or his/her clerks) and joined onto by others, as is the case at some Supreme Courts.

    In any case, the Australia v. Japan case is proceeding at the same speed as most cases before the Court–the Parties and the Court in no sense have chosen to slow down the process (in fact, they have made the decision to have only one round of written submissions, rather than two, which seems to me to be somewhat exceptional in a case of this sort). And believe it or not, there are criticisms of the Court that it is currently moving too quickly through the cases on the General List. So please, learn a bit about standards at the ICJ (and perhaps international adjudication in general) before criticizing the speed at which a particular case is moving. You could criticize all international adjudication if you wish–but disputing States always have the option to turn to a different body or to request an unusually streamlined written procedure before the Court if they consider time to be of the essence.

  2. I agree that this case is moving at the normal speed of ICJ case. But that is the problem! And I agree (and acknowledge) that the timing is party-driven, as well as by the Court.  4 years is a ridiculous amount of time to resolve this dispute. It can choose to push the parties to resolve these cases more quickly, and it really should.

  3. It’s a spectacular amount of time in pursuit of a meritless case.  Australia’s case seems so weak I can’t imagine much purpose to the whole thing aside from assuaging domestic foes of whaling.

  4. Ah, thanks for the clarification and sorry for the harsh intro to my last comment. I can understand the argument that the ICJ in general moves slowly (although just how slowly it moves changes from time to time). However, the Parties are always free to request a chamber or agree to use more streamlined procedures if speed is important to them. I’m not sure if it is the Court’s responsibility to press the Parties to resolve their disputes more quickly–that ball is in the Parties’ court. In any case, please recall that, unlike a national Supreme Court, the ICJ is a court of first instance, and that, unlike a national trial court, it is also a Court of last instance (subject, of course, to revision or interpretation proceedings). It is understandable that the Parties wish to ensure that they have sufficient time to develop their pleadings and to present the Court with a robust factual record. And it is proper for the Court to give considerable attention to the fullness of the record. In other words, it seems to me to be preferable that the default position of the Court is to encourage comprehensiveness over speed. In cases where speed is paramount, the Court has mechanisms to act accordingly . I just don’t see what is particularly urgent about the Australia v. Japan case.

    Don’t get me wrong–I definitely have my own issues with the procedures of the ICJ. And I do believe that many of the current pleading practices should be streamlined. But I just don’t think that the Court should be criticized for the speed at which the Parties choose to resolve their disputes, or that it should be responsible for pushing the Parties in this regard.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.