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 But that is going to be a problem since as of October 6, 2015, Japan has withdrawn from the compulsory jurisdiction of the ICJ with respect to “any dispute arising out of, concerning, or relating to research on, or conservation, management or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.