Australia’s long-running dispute with Japan over whaling in the Southern Ocean is about to enter a new phase. Next week hearings will commence at the International Court of Justice (ICJ) in The Hague in the case Australia has brought against Japan over the legality of its Southern Ocean whaling program.

What does the whaling program involve?

Called JARPA II, it’s the second phase of Japan’s whaling program in the Southern Ocean, which commenced in 2005 (following the original JARPA program which began in 1987).

Under JARPA II, the Japanese government has issued permits to the Institute for Cetacean Research to take up to 850 minke whales, 50 fin whales and 50 humpback whales each year for the purposes of scientific research. These “special permits” issued by Japan rely upon Article VIII of the 1946 International Convention for the Regulation of Whaling, which makes direct reference to the ability of signatories to the convention to issue permits for the purposes of “scientific research”. Australia has been a longstanding critic of Japan’s so-called “special permit” whaling, arguing it is really commercial whaling in disguise and flouts the moratorium on commercial whaling introduced in 1982.

What is Australia’s legal case against whaling?

Australia will argue that Japan’s conduct of its JARPA II whaling program in the Southern Ocean breaches international law because:

  1. Japan has failed to observe the zero-catch limit in relation to the killing of whales for commercial purposes set by the 1946 International Convention for the Regulation of Whaling
  2. Japan is undertaking commercial whaling in the Southern Ocean Whale Sanctuary established by the International Whaling Commission under the convention
  3. Japan’s activities are not consistent with Article VIII of the convention due to the scale of JARPA II
  4. Japan has breached and is continuing to breach provisions of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora and the 1992 Convention on Biological Diversity.

Japan is expected to challenge the jurisdiction of the court to be able to hear the case but has not indicated any other arguments it will make. It is also anticipated that Japan will seek to directly counter the Australian legal argument and assert that its conduct of JARPA II is consistent with the convention.

Who else is involved?

In 2012 this case took an interesting turn when New Zealand announced its intention to intervene in its capacity as a party to the Whaling Convention. NZ has made written submissions in support of Australia’s interpretation of the convention and has been granted time to make a short oral submission to the court. Japan raised objections over NZ’s intervention because of the presence of an NZ judge as a member of the court and because Australia had appointed a judge ad hoc.

The International Court is comprised of 15 judges elected for nine-year terms by the United Nations General Assembly and Security Council. If a state is appearing before the court that does not have a national among the judges, it is permitted to appoint a “judge ad hoc”, who joins the court only for those proceedings and who performs the same functions as the permanent members of the court. Australia’s judge ad hoc is Professor Hilary Charlesworth, and so 16 judges will determine this case. Japanese national Hisashi Owada is a permanent judge.

However, Japan argued Australia’s ad hoc judge was part of a “litigation strategy” being employed by Australia and NZ that the court should not have permitted. In a procedural ruling handed down in February 2013 the court dismissed Japan’s objections and permitted NZ a right of intervention.

The hearings are scheduled to commence on June 26 and run until July 16. Recent cases before the ICJ have been on average decided in six months, so a decision could be handed down during the middle of the 2013/14 whaling season (in Australia’s summer). As there is no right of appeal, Australia will be hoping for a decisive legal victory.

Has Australia done this kind of thing before?

Australia’s first and only appearance before the ICJ as an applicant was in the nuclear tests case against France in 1973. The last occasion Australia was before the court involving a dispute was the Nauru case in 1995, when it was the respondent in those proceedings. Although Australia is not therefore a frequent litigant before the International Court, the fact that it was prepared to take one of its closest allies to the court indicates how significant an issue whaling had become for the government.

However, whether the court’s judgment will end the whaling impasse remains to be seen. Much will therefore depend upon how Australia advances its legal argument in The Hague over the next few weeks.

Peter Fray

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