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  But that is going to be a problem since as of October 6, 2015, Japan has withdrawn from the compulsory jurisdiction of the ICJ with respect to “any dispute arising out of, concerning, or relating to research on, or conservation, management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

Whale Wars Day of Judgment: ICJ Rules Against Japan

by Julian Ku

Here is the ICJ’s decision in “Whaling in the Antarctic” (Australia v. Japan, New Zealand intervening).  Here is the Registry’s summary. The vote was unanimous on jurisdiction, and then 12-4 on the rest in Australia’s favor with judges Owada, Abraham, Bennouna, Yusuf dissenting.  There was one aspect of the decision that went in favor of Japan (13-3) but that aspect of the decision shouldn’t affect the overall outcome significantly.

I won’t pretend to have digested this judgment in any rigorous way. I will note that the judgment calls on Japan to “revoke any extant authorization, permit or licence granted in relation to JARPA II, and refrain from granting any further permits in pursuance of that programme.”  Japan’s implementation (or non-implementation) of this remedy will be worth watching going forward.

Whale Wars: Is This The End?

by Julian Ku

On Monday, the International Court of Justice will announce its long-awaited judgment in Whaling in the Antarctic (Australia v. Japan). The judgment (scheduled for 10 a.m. Hague time) comes almost four years after Australia first filed its application way back in May 2010 (here is one of many prior posts where I complained about the length of time this judgment has taken).

This case will be the first time (I believe) that Japan has participated in an ICJ proceeding as a respondent and facing a binding judgment.  Both Japan and Australia had no shortage of legal talent on their teams in this case.  Australia is claiming that Japan is violating its obligations under the International Convention for the Regulation of Whaling by using the cover of “scientific research” to actually conduct commercial whaling.  Japan disagrees, and my impression is that this will end up being more of a factual than legal determination by the ICJ here, but I haven’t been following the legal arguments very closely.

In any event, it will also be interesting to see how and if Japan complies with the ICJ’s ruling if it loses.  I find it hard to imagine that the Japanese government will immediately comply, but it is hard to imagine Japan simply ignoring the judgment either.  Since there is evidence the commercial viability of whaling in Japan is collapsing anyway, perhaps this is the excuse the Japanese government needs to end its whaling programs? In any event, if Japan wants to leave open international adjudication as a mechanism for resolving disputes with Korea or China, it needs to be careful in how it reacts to any adverse ruling here.

Australia’s Application to the ICJ Causes Japanese Government to Fall!

by Julian Ku

I’m sure that this smashing application by Australia to the ICJ is the proximate reason for the Japanese Prime Minister’s sudden resignation today. Behold the power of the World Court litigation! OK, I’m violating my late-night blogging rule (see earlier posts for my dumb brain cramps when I blog at midnight) and getting a little punchy. But it is a weird coincidence, isn’t it?

Although the full Australia application is not online yet, the argument looks like it tracks the expected claims under the International Convention for the Regulation of Whaling with secondary arguments under CITES and the U.N. Convention on Biodiversity. More details later when the full application is put up online. Will the new Japanese Government be willing to make a deal?

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.

Can Japan Declare Victory in the Whale Wars?

by Julian Ku

The International Whaling Commission’s proposed compromise on the whaling dispute has been released (h/t Jurist). As I noted before, the proposed deal would bring all nations within the IWC framework, but explicitly permit commercial whaling for certain nations for at least the next 10 years. The numbers permitted under the proposal is a little murky, but it may include thousands of whales, including some whales that are considered endangered.  Predictably, the Greenpeace folks are opposed.  It is true that this is not exactly a whale-friendly compromise.  But Japan could, with relatively little cost, simply get out of the IWC and hunt even more. So the choice for whale-defenders is a tough one. But this compromise text looks promising.

Whale Wars May Finally End? The U.S. Tries to Make a Deal

by Julian Ku

Apologies for this interruption of a great VJIL discussion on Chris Bruner’s fascinating article, but I can’t resist yet another post on the continuing international dispute over whaling.  The NYT reports the U.S. is trying hard to broker a deal between the anti-whaling nations (read Australia) and whaling nations like Japan.

The compromise deal, which has generated intense controversy within the 88-nation International Whaling Commission and among antiwhaling activists, would allow the three whaling countries to continue hunting whales for the next 10 years, although in reduced numbers.

In exchange, the whaling nations — which have long exploited loopholes in an international treaty that aims to preserve the marine mammals — would agree to stricter monitoring of their operations, including the placing of tracking devices and international monitors on all whaling ships and participation in a whale DNA registry to track global trade in whale products.

This doesn’t quite sound like what Australia wanted, but it appears the Australians are on board.  So, sadly for me, we may be seeing an end, for the time being, of a potential ICJ showdown between Australia and Japan.  But there is always hope: negotiations are ongoing and could still fall apart.

Will the International Whaling Commission Survive the Australia-Japan Showdown?

by Julian Ku

This is probably just posturing, but it would be a rather dramatic turn of events if the IWC ended up a casualty of the vociferous Australian campaign against Japanese whaling.  I see the Kiwis are trying to play mediator.

The international body to control whaling worldwide could collapse if a deal cannot be reached to allow restricted commercial whaling, New Zealand’s representative said Thursday.

Former New Zealand prime minister Geoffrey Palmer, who chairs an International Whaling Commission (IWC) group trying to negotiate a deal, said the IWC could fall apart.

“I think there is a big risk of that and I don’t relish it,” Palmer told reporters in Wellington.

Negotiations start next week in DC and the big date is April 22 for a deal to go forward to the annual IWC meeting. Stay tuned!

CITES Parties Reject Bluefin Tuna and Polar Bear Trade Ban

by Julian Ku

Japan triumphs in a big way at the CITES meeting in Doha, as the U.S. proposed ban on bluefin tuna trade goes down 20-68.

The rejection of the bluefin proposal was a clear victory for the Japanese government, which had vowed to go all out to stop the measure or else exempt itself from complying with it. Japan, which consumes nearly 80 percent of the bluefin catch, argued that the International Commission for the Conservation of Atlantic Tunas, or Iccat, should be responsible for regulating the fishery, not the United Nations. European Union nations, whose fleets are most responsible for the overfishing of bluefin, abstained from voting in the second round after their own watered-down proposal was rejected.

The U.S. proposal for polar bears also went down, this time with Canada leading the opposition.

Bluefin Tuna, Polar Bears, and Elephants at the Parties Meeting of the Convention on International Trade in Endangered Species

by Julian Ku

Sure there is some dispute about settlements in East Jerusalem, or something, but here are some international law disputes that really matter. At CoP15, or the 15th Meeting of the Parties to the Convention on the International Trade in Endangered Species – currently going on in Doha, parties are discussing: resuming (or not resuming) the trade in ivory and imposing a ban on the commercial fishing of bluefin tuna, and a ban on commercial trade in polar bears (a U.S. proposal) as well as other issues.  CITES is a fascinating regime for regulating  trade in wildlife and conservation.  Does it work? That’s always hard to say. At least with respect to the ivory ban, there is reason to think that the ban backfired.  But then again, it is hard to imagine Japan battling furiously against the bluefin tuna ban if it didn’t think CITES had real teeth. Then again, like its battles over whales, Japan is increasingly on their own here.

DOHA — Japan was accused of scare tactics at world talks on wildlife protection on Monday as it campaigned against a proposal to curb trade in bluefin tuna, the succulent sushi delicacy….

“Japan’s lobbying is formidable. Three or four people from the Japanese delegation are constantly criss-crossing the Convention, arranging meetings,” he told AFP.

On Sunday, Japanese delegates met with some African nations, said a negotiator from west Africa.

“We are used to it. They do the same thing before each meeting of the International Whaling Commission,” the body that oversees global whale populations, he said.

Whale Wars: Is the Threatened Australia ICJ Lawsuit Just Politics?

by Julian Ku

Two different but interesting views of Australia’s threat to bring Japan to the ICJ over whaling.

Over at The Jurist, Don Rothwell of Australian National University provides some background and legal context for Australia’s lawsuit. As I understand it, Australia could claim that Japan is actually violating Australia’s 200 mile exclusive economic zone (assuming certain Australian Antarctic claims were accepted).  But it seems more likely that Australia will try to make a claim under the 1946 International Convention for the Regulation of Whaling. As I’ve suggested, this seems a very tough case to make, and Japan may get the IWC to alter its rules anyway.

Over at the Australian, Greg Sheridan points out that the Japanese government is not taking Australia very seriously on this issue, and sees it as essentially a domestic political matter for Australians.  And he goes on:

As well, observers of all stripes are dumbfounded at the Rudd government’s decision to blindside Japan’s Foreign Minister Katsuya Okada just before his visit to Australia. Canberra did this by announcing, on the eve of Okada’s arrival in Australia and without any warning to the Japanese, that it had decided to take Japan to the International Court of Justice over whaling. There is not the slightest chance of this court action succeeding. To insult Okada, the most pro-Australian member of Tokyo’s core leadership, in this manner was extremely foolish.

Emphasis added. I think Sheridan is not far wrong. Unless Australia is going to make the EEZ argument, it doesn’t seem like it has a very strong case.  And even if they somehow win, there is very little chance of Japan complying with the ICJ order.