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[This is based on research for the project, 'Fostering a Common Culture in Cross-Border Dispute Resolution: Australia, Japan and the Asia-Pacific', supported by the Commonwealth through the Australia-Japan Foundation which is part of the Department of Foreign Affairs and Trade. An edited version was published on Australia Day by the East Asia Forum blog.]

My Sydney Law School colleague Dr Tim Stephens convincingly criticises the Sydney Morning Herald and others recently for over-sensationalising Australia’s alleged “Secret Dealing on Whale Hunts”, in reporting drawing on documents released by WikiLeaks. He also analyses reports indicating some opposition with the Australian government about the proceedings it has now initiated against Japan before the International Court of Justice (ICJ). A lively debate has emerged on the ABC’s website in response to Dr Stephens’ article entitled “A Whale of a Story”, with many more excellent points made on both sides of the whaling debate. Here is my own two yen's worth.

My impression is that the Japanese government is confident about winning this case basically because the Whaling Convention was set up to permit (sustainable) whaling. Rather than withdrawing from the Convention (like Iceland) after the Moratorium on commercial whaling, they want to restore the regime to what they see as its original and plain meaning. However they got nowhere in IWC negotiations because (a growing number of) states have changed their views on whaling from the 1970s. (Our USydney international relations colleague Dr Charlotte Epstein explains carefully how this shift occurred in her 2008 book, which I reviewed here.)

So the Japanese government instead now relies on the "scientific whaling" provision to keep up the pressure. Yet there is a risk for Japan that even sticking to its literal terms will be found by the ICJ to amount to an "abuse of rights". This is the sort of thing the Australian government is gambling on. It could work if their lawyers can appeal to the Court to adopt an interpretation of the Convention which is less bound by its strict terms and original intent, and instead more purposive or liberal. Quite a risky strategy even in an international court, where such appeals tend to be easier to make than in national courts like the (current) High Court of Australia.

The situation remains me of the Australian government's recent comprehensive defeat in the WTO - Apples case brought by New Zealand. The government always had a weak case because Australia's quarantine restrictions, blocking imports based on fire blight in NZ, were similar to those applied by Japan against US apples - which the WTO had earlier concluded were an over-reaction and an illegal barrier to trade. But Australia still tried to run an argument for a broader interpretation of certain WTO Agreement provisions. This failed before the WTO (panel and Appellate Body) but the government was (and still is) able to draw out liberalisation of apple market access - a win for domestic political reasons (eg in Tasmania).

Apart from the local politics behind both cases, it's worth remembering that running big international litigation takes up valuable resources - even when salaried government lawyers are involved. On the other hand, litigation is usually pretty unpredictable (otherwise parties have strong incentives to settle disputes) and it can be worthwhile bringing test cases on the off chance of success and/or as part of a broader dispute resolution strategy. You just have to pick your fights carefully.

I don't think a judgment from the ICJ will truly resolve the whaling issue anyway. The law applies a particular logic to social complexity - viewing "science" through its own lens, for example - which may or may not add much value to the existing public debate. We still need an outcome that balances science, law, ethics, (short-term and long-term) economics, culture, etc.

Perhaps the Japanese and Australian (and indeed NZ) governments will be able to reach a negotiated settlement after full Submissions have been presented to the ICJ from both sides, and at least some ICJ judges provide a few hints about their preliminary views on the case. A parallel formal or informal conciliation process, facilitated by a neutral mediator, might help too. (After all, compromises are quite often reached in cross-border commercial and investment disputes involving Japanese interests. ) But other IWC states may not approve of a settlement reached among these parties, so further disputes may arise. And the challenges of sustaining marine resources generally require multilateral (or at least regional) responses - although it would also be helpful if citizens around the world could pressure their national governments to stop subsidising fishing fleets even on a unilateral basis.

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Japanese Law in Asia-Pacific Socio-Economic Context