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

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

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.
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Asia-Pacific, Courts & Tribunals, Organizations
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Daniel
Daniel

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… Read more »

M. Gross
M. Gross

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.

Daniel
Daniel

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… Read more »