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Japanese Whaling: When Diplomacy Fails, Call the ICJ

JURIST Guest Columnist Don Rothwell of Australian National University College of Law says that in the context of unpromising diplomatic negotiations between Japan and Australia with regard to Japanese whaling in the Southern Ocean area, the Australian government will likely be left with no choice but to file suit against Japan in the International Court of Justice....

After more than 20 years of diplomatic confrontation over Japan's Southern Ocean whaling program, Australia has finally set a deadline for the Japanese to cease all whaling by the start of the 2010-11 whaling season or otherwise prepare to front up to the International Court of Justice (ICJ). Australia's position was outlined by Prime Minister Kevin Rudd when on 19 February he stated on national television that "what we're putting to the Japanese is to take where they are now, which is the slaughter of some hundreds of whales each year and reduce that to zero. If we don't get that as a diplomatic agreement … we'll be going to the International Court of Justice." Rudd set the deadline for a Japanese reduction of the whale catch to zero by November 2010, just before the start of the annual Japanese Southern Ocean whaling season.

How has it come to this? To a degree, the seeds for the current dispute were sown in 1977 when the Liberal Coalition Government of Malcom Fraser took the then courageous step of banning all commercial whaling in Australian waters. Australia then commenced an international campaign alongside other conservation minded countries to halt commercial whaling and found success in the International Whaling Commission which endorsed a moratorium on commercial whaling that took effect in 1985-86. In response Japan commenced its first scientific whaling program in the Southern Ocean — known as JARPA — which ran until 2005 and which focused on an annual take of between 300-450 minke whales. For the 2005-06 Antarctic season, Japan announced it was commencing JARPA II which effectively doubled the annual take of whales to 950 including minke whales and a small number of threatened and endangered fin and humpback whales. JAPRA II became operational from the 2007-08 season and whilst the take of humpbacks was suspended as a result of diplomatic intervention by the US, hunting for minke and fin whales has continued.

Maintaining the moratorium on commercial whaling has virtually became a bipartisan article of faith for Australian governments since 1986, and while Iceland and Norway have sought to avoid the ban, Japan has come under particular scrutiny because its Southern Ocean whaling is effectively seen as being in Australia's backyard. The declaration of an Australian Whale Sanctuary, which prohibits whaling out to 200 miles from the mainland, offshore islands, and the Australian Antarctic Territory, has given the issue further prominence. Notwithstanding a 2008 Australian Federal Court ruling that Japan's actions were illegal under Australian law, the Japanese have defied the court orders insisting that as they do not recognize Australia's Antarctic claim, they are not bound to respect Australian law. The Rudd government, not wanting to risk a challenge to Australian sovereignty over Antarctica, has not actively pursued enforcement of these court orders.

In response to these developments, the International Fund for Animal Welfare (IFAW) commissioned several legal advices which were provided first to the Howard and then to the Rudd government outlining international legal arguments which could be mounted to halt the Japanese whaling program. At the core of these legal opinions was that Japan's interpretation of the 1946 International Convention for the Regulation of Whaling allowing for 'special permit' scientific research whaling was an abuse of right and inconsistent with Article 8 of the Convention. If the ICJ option was pursued it was recommended that Australia first seek provisional measures to immediately halt the Japanese hunt until such time as the court rules on the merits.

The election of the Rudd Labor government in November 2007 brought great expectations that Australia would pursue these legal options; however, diplomatic options were initially favored. Mindful perhaps of the implications for the future of the International Whaling Commission, Australia brought forward an ambitious reform agenda seeking to place significant constraints on the unilateral special permit Japanese whaling program. At the 2008 IWC meeting this agenda gained traction, but since then has become bogged down in endless diplomatic wrangling. A March 2010 IWC inter-sessional meeting planned for Florida may provide some indication as to where this reform agenda is heading, but Prime Minister Rudd's recent comments suggest the Australian government has had enough of Japan's failure to engage in this process in good faith. Given the nature of IWC politics and procedure, the June 2010 IWC annual meeting in Morocco looms as the decisive moment for assessing whether a diplomatic breakthrough is possible.

Japan's Foreign Minister, Katsuya Okada, recently visited Australia for bilateral talks. There was a polite agreement-to-disagree over whaling and a commitment from both governments to try and ensure that the whaling dispute would not derail what are otherwise excellent bilateral relations. Okada said that Japan seeks "a diplomatic solution to this issue through understanding of culture and position of each party". However, these statements fail to appreciate that Japan's actions on whaling run counter to the spirit of a global moratorium on commercial whaling, and its JARPA II program has only heightened suspicions that Japan is actually engaging in a form of commercial and not scientific whaling. It is beginning to look increasingly likely that Australia will finally call Japan's bluff and politely say "see you in court."

Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University. In November 2006 he chaired the Report of the Sydney Panel of Independent International Legal Experts on Japan's Special Permit ("Scientific") Whaling Under International Law, and in November 2008 chaired the Canberra Panel addressing the same issue.


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