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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.

March 03, 2010

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Don, you failed to address why commercial whaling shouldn't be resumed.

As you know, The International Whaling Commission (IWC) was set up to manage whaling to ensure whale stocks are not over-harvested, rather than protecting all whales irrespective of their abundance.

In 1982, the IWC adopted a moratorium on commercial whaling, which was intended as a temporary measure until the whale stock is sustainable for commercial whaling.

In 1994, IWC's own Scientific Committee has agreed that many species and stocks of whales are abundant and sustainable whaling is possible.

How do you explain this? If you close your eyes to this most important point of the issue and try to discuss only part of it, your opinion is nothing more than casual essay.

March 03, 2010  

Knowing the real issue of whaling, taking Japan to the International Court is one of the most risky (and stupid) things to do for NZ and Australia. Why? Two reasons.

Firstly, there is a high possibility (and probably we will) lose the court case. This means more number of whales will be killed in the Antarctic ocean. It's like giving Japanese a free ticket of whaling in the Antarctic ocean. Actually some member of Japanese government are favoring fighting at the International Court to let NZ and Australia people know that what they are doing is under current international rule. Unfortunately, this is true and therefore diplomatic solution is the best and indeed the only way to stop whaling in the Southern ocean.

Secondary, Australia will lose the so called 'Australian Antarctic Territory'.

Australia's logic is this. A part of Antarctic is part of theirs, so 200 miles from there should be Australian Whale Sanctuary. Not many countries agrees that there is such thing as 'Australian Antarctic Territory'. Even among anti-whaling countries, many are not happy about this statement. During the international court case, Australia needs to prove that a part of Antarctic is theirs. This is clearly against the Antarctic Treaty - Article IV.

It is highly likely that international court will dismiss the statement that Australia owns a part of Antarctic, therefore Australia will lose a land in Antarctic and significant loss for Australia.

I hope Australia and NZ will not do anything stupid like this. I hope Australia and NZ government see the large picture of the issue.

March 03, 2010  

If commercial whaling were regulated in actual fact by an international body, which will never be the case, the previous comments might make sense. But at this time there is no control over what the Japanese do with their "scientific" whale-hunting, any more than there is with their "scientific" dolphin massacres. The Japanese will only get the message if their whaling ships are threatened with being sunk and where they understand that it will happen. RER

March 04, 2010  

The abuse of the whaling convention is not Japan's special permit catches, but the blanket moratorium.

The moratorium was imposed at a point in time at which the Right whale, Blue whale, Humpback whale, Fin whale, Sei whale (and probably others I forget) had already been globally protected by the IWC.

What the moratorium would achieve was to ban Japan (and Russia etc) from catching even abundant Antarctic minke whales. And there was never any scientific advice from the IWC Scientific Committee that that was a necessary whaling management measure. The IWC politicians simply had the votes, so ignored the spirit of the whaling convention, and pushed the moratorium through. And kept it in place ever since with no intention of lifting it, as the title "moratorium" would suggest.

That such a measure could ever be adopted under the terms of the whaling convention is clearly a massive loophole.

Furthermore, a significant side effect of this from the perspective of science based marine resource (whale) management was that biological data from commercial catches could no longer be obtained, if there were to be "zero" catches.

Yet the whaling convention itself recognises the utility of such data, and encourages contracting governments to collect and share it (it's written in the final part of Article VIII in very plain unambiguous English). The moratorium therefore went against the whaling convention on these grounds, also, as the Antarctic minke was never in serious threat of extinction. There is little to suggest it has ever been over-exploited, even.

Japan's response to the moratorium - commencing special permit catches - was a totally natural response for a contracting government willing the IWC to fulfil it's stated mandate based on scientific knowledge, and in complete compliance with the whaling convention.

The IWC Scientific Commmittee itself has acknowledged the utility of the data provided by Japan. This is a simple matter of fact that can be confirmed by reading the IWC Scientific Committee homepage.

As such I don't believe your suggested court action could ever succeed, indeed I suspect Japan would win hands down and the Australian government that took the action would be the laughing stock of the world as the facts were laid bare.

You also suggest that Japan hasn't been acting in good faith with respect to recent IWC discussions. This is extremely hard to fathom. Yes, Japan isn't simply doing what Australia wishes. But that is not a sign of bad faith. Japan is at the table, offering all sorts of compromises (including on the legal right of contracting governments to grant special permit catches as they see fit). That Japan is even thinking of compromising on the principles enshrined in the whaling convention itself illustrates to me that Japan is offering more than it ought be expected to.

Australia on the other hand seems to have decided (due to recent cultural changes) that it wishes the whaling convention did not exist, and is fancifully trying to prevent it from functioning as was originally intended.

March 04, 2010  

Is Australia able to bring action against Japan in the ICJ without Japan's consent?

March 10, 2010  


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