Whale Wars Truce is Over! Japan Will Resume Whaling Despite ICJ Ruling

by Julian Ku

Reports suggest that the Japanese government will resume whaling in the Southern Ocean near Antarctica early next year.  This news is causing lots of teeth-gnashing and anger in Australia and New Zealand, whose governments had brought and won a recent International Court of Justice decision finding Japan’s previous whaling program in violation of the International Whaling Convention.  The news also reveals (again) the limits of the ability of international dispute settlement system to change a country’s behavior.

Japan had previously said it would abide by the ICJ decision.  It did so by canceling whaling for one season and ending the program that the ICJ had said did not satisfy the “scientific research” exemption.  But Japan’s resumption of its whaling program signals that it believes its new program is consistent with the “scientific research” requirement.  I believe that it has the right to resume a new whaling program under the scientific research exemption without violating the ICJ’s judgment.

Of course, it might turn out that the new program is also in violation of the IWC’s “scientific research” provision, but the ICJ decision from 2014 does not require Japan to completely give up all whaling.  Indeed, although Australia sought a remedy from the ICJ requiring Japan to “refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article VIII..,” the ICJ simply noted that Japan was already under this obligation (see para. 246). Therefore, the ICJ explained: “It is to be expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article VIII of the Convention.”  It looks like Japan has done so, and it has now granted more permits under Article VIII.

Australia’s Environment Minister has said that Japan cannot “unilaterally” decide that its new whaling program is in compliance with Article VIII of the IWC.  Actually, legally speaking, Japan can do just that.  The only legal remedy Australia is left with is another ICJ lawsuit.  But that is going to be a problem since as of October 6, 2015, Japan has withdrawn from the compulsory jurisdiction of the ICJ with respect to “any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.”  I think Australia might simply argue that Japan is in violation of the previous ICJ decision, but this will be a tricky argument on jurisdiction (and will take another five years to resolve).

So what’s the lesson here? It is risky to place too many of your eggs in the “international court” basket, even when you are suing a liberal, generally international law-abiding country like Japan (Philippines, take note!). It is too easy to either ignore or simply work around the obligations of international courts in these types of cases. And, importantly, while the cost to a country’s reputation may be severe when it violates or works around an international court order, reputation costs are seldom high enough to actually change a country’s behavior.  (For a very good summary of this whole saga, see Philip Clapham’s essay here).  Australia and New Zealand should probably think about some other remedies besides international court litigation.  And I guess the Whale Wars truce is over.

http://opiniojuris.org/2015/11/30/whale-wars-truce-is-over-japan-will-resume-whaling-in-southern-pacific/

3 Responses

  1. Hi Julian,

    You write that Japan’s actions “reveal[] (again) the limits of the ability of international dispute settlement systems to change a country’s behavior.” Are the difficulties you describe really about “international dispute settlement” as a category, though? On the one hand, as I understand your view the ICJ issued a decision that produced a change in behavior by Japan calibrated to comply with a narrow (but on your view correct) interpretation of that decision. True, the ICJ’s decision did not completely change Japan’s attitude and behavior toward whaling. But is this situation really different from a losing party in domestic litigation who complies with the narrow decision but does not change its broader behavior? To give but one example, despite the occasional ruling in the last 20 years from the Supreme Court finding that Congress has exceeded its power under the Commerce Clause, neither Congress nor the executive branch seems to have changed its general behavior or views in regards to the scope of the Commerce power to accord with the broader underlying view of the prevailing parties in those cases. Is this really that different? Courts in general are not great at establishing broad policies or settling divisive political issues. They are frequently praised when they do not try to.

    On the other hand, some of the problems you identify–what Australia does now–also seem to be about a lack compulsory jurisdiction, rather than about features of international dispute resolution. Some international regimes have compulsory jurisdiction—trade, investment—and would permit a prevailing party to seek an enforcement decisions (e.g., a 21.5 proceeding under the WTO DSU or an action to enforce an investment award under the ICSID or NY Convention).

    None of this is to say that international dispute resolution is an ideal system, that compliance with even the best international tribunals is on par with compliance with domestic court rulings in countries with strong court systems, nor that the ICJ’ effectiveness or legitimacy is on par with either domestic courts or even the relatively more effective international tribunals. I do worry, though, that we hold international dispute resolution, as a category, to too high a standard when we ask some its relatively weaker institutions to solve on their own the kinds of broad political problems that even well-legitimized domestic courts seem unable to resolve in the absence of political will.

  2. Well, Tokyo’s Summer Olympic could be boycotted in 2020.

    Another closer event that could be boycotted is the spring 2016, 8 stages north-american tour of the j-pop hologram idol Hatsune Miku. She’s a top tier ingredient of the “Cool Japan” pop culture export initiative and all her tickets are already sold out. If concert venues like the Microsoft Nokia Theatre could be convinced to withdraw with conscience over the whaling war, that would publicly humiliate Japan.
    Miku’s master CFM is from the northernly island of Hokkaido, which the evil spirit of Japan when it comes to whaling: they eat 2/3rd of the giant sea mammal meat, their fast food chain Pierrot is notorious for this.

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