Whale Wars Are Now “The Whale Cases”: Australia Announces ICJ action Against Japan (Corrected)

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.