The world’s highest court has ordered Japan to immediately stop its Antarctic whaling program in a decision celebrated by conservationists. But the whales may not have been saved just yet; the court’s decision contains a sting in the tail that could allow whaling to continue.

The person who may be pivotal in determining if Japanese whaling ships head down to the Antarctic next summer, or never again, is Tony Abbott. And we may have a final answer within a fortnight.

Last night the United Nations’ International Court of Justice met in The Netherlands to rule in the case of Australia verses Japan over Antarctic whaling. Each southern summer Japan kills 100-plus minke whales in southern waters in the name of scientific research, which is ostensibly legal under international law (the meat is eaten). Australia argued this was commercial whaling in disguise; Japan insisted it was for science (Crikey investigated that science here and here).

It was a far cry from the telegenic drama we’ve become used to as protesters and whalers clash on the high seas. An august chain of judges sat before a hushed courtroom, lawyers for Japan and Australia sitting impassive through the two-hour judgement. The chief justice, with a sprig of lawyerly lace at his throat and a ponderous Slovakian accent, gave a verdict which surprised many because it was activist and decisive.

Australia won. The ICJ ruled Japan’s whaling program is not for scientific research and ordered it to stop. It was a clear win for Australia and conservationists. It’s humiliating for Japan, a good international citizen who had never been before the ICJ. The judges ruled 12 votes to four against whaling. The decision cannot be appealed.

Here’s a plain-English summary of the ruling:

  1. It can be legal to kill whales for scientific research.
  2. It can be legal to sell and eat the whale meat …
  3. … but such programs have to be done properly; whalers must give sound scientific reasons for why they’ve done it, why they can’t use non-lethal methods, and justify how many whales they are killing.
  4. Japan has not done this, so Japan’s current whaling program (called JARPA II) is illegal and must stop.

And this is the legal wording:

“The Court concludes that the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not ‘for purposes of scientific research’ pursuant to Article VIII, paragraph 1, of the Convention.”

There’s the sting in the tail. The ICJ did not ban scientific whaling. It did not ban Japan from ever whaling. It simply found that Japan’s current whaling program must stop.

The question now is whether Japan bows to the result and abandons Antarctic whaling — long an irritant in its foreign affairs but seen by some as a matter of national pride and identity — or battles on. An official post-verdict statement from Japan’s chief cabinet secretary said:

“Japan is disappointed and regrets that the Court ruled that JARPA II by Japan did not fall within Article VIII, paragraph 1, of the ICRW. However, Japan will abide by the Judgment of the Court … We will consider our concrete future course of actions carefully, upon studying what is stated in the Judgment.”

“Another way around the verdict is Japan could stay in the IWC and design a fresh program taking into account the ICJ’s criticisms …”

So Japan is holding its cards close. There are a handful of options. It could withdraw from the ICJ, although that won’t affect this decision. It could withdraw from the International Whaling Commission and keep whaling. Japan could redesign a smaller whaling program and try again, within the IWC. Or it could stop whaling.

The critical issue at law is that the International Whaling Convention, which Australia and Japan have both signed, has a moratorium on commercial whaling but allows lethal whaling ” for purposes of scientific research” (the famous article 8). The ICJ found Japan is not meeting the IWC. But note this: if Japan pulls out of the IWC, those laws don’t apply to it. And note that the IWC, which oversees the convention and is supposed to reach a clearer solution, is hamstrung and has become a forum for bribing poorer countries to be allies. So it won’t change the rules.

Another way around the verdict is Japan could stay in the IWC and design a fresh program taking into account the ICJ’s criticisms, which were that Japan sets a high quota for killing whales (850 minke whales a year, plus 50 humpbacks and 50 fin whales — although it only takes a fraction) without giving a good scientific reason; that Japan has not looked at whether non-lethal techniques would suffice; and that the scientific output has been “limited”. The ICJ exposed the so-called “science” as a sham. It’s damning stuff.

Don Rothwell, professor of international law at Australian National University, says it’s too early to say what Japan will do. “Whether [the ICJ decision] means a permanent end to Japanese whaling for scientific research purposes remains to be seen,” he told Crikey.

Rothwell reckons “wiser heads could well prevail in Tokyo”. With Japan feeling challenged by the rise of China (and territorial and historical disputes with China), Japan may decide it doesn’t need a running diplomatic sore with allies Australia and the US over whaling. “I think the geopolitics of Japan’s position has changed,” Rothwell said, “[Japan] needs to engender and maintain the support of key partners in the region.”

It’s worth noting Japan’s Ministry of Foreign Affairs is much cooler on whaling than the Fisheries Ministry. Which department holds the upper hand now?

Next week Prime Minister Tony Abbott heads to Japan, our second-largest export destination (think coal, iron ore and beef). He has raised eyebrows by calling Japan “Australia’s best friend in Asia”, effectively upgrading the relationship. Rothwell says Abbott’s visit to Japanese PM Shinzo Abe could be pivotal; Japan could announce it would stop Antarctic whaling for good.

If Japan stops whaling it will want to save face. Both Japan and Australia have extensive non-lethal whaling research programs — why not offer to team up, share information and produce joint research? Provided Japan ends the killing, of course.