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.

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.

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.

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.