After the Whaling Case: Its Lessons from a Japanese Perspective

After the Whaling Case: Its Lessons
   from a Japanese Perspective
                Hironobu Sakai
       Professor of International Law
          Kyoto University, Japan
                Whaling in the Antarctic:
         The ICJ Judgment and Its Implications
      Kobe University Centre for International Law
                   31 May‐ 1 June 2014

                            1

Introduction
 “From a Japanese Perspective”

Notes
・ Evaluation from a Japanese scholar’s viewpoint
    Not from a Party’s standpoint at the bar
    But only from an external point of view
・ Covering the issues around the Whaling Case
  Not comprehensively, and considering them
  Not so profoundly
    Rather for bringing up some legal questions

                           2

Why Didn’t Japan Submit Any Preliminary
Objections before Going to the Proceedings
              on the Merits?

・ Japan chose not to raise preliminary objections, but raised
the objections to jurisdiction in its Counter‐Memorial, by
invoking the Judgment on the Application of the Interim
Accord of 13 September 1995 (the former Yugoslav Republic of
Macedonia v. Greece).

   “[T]he Respondent advised the Court that, rather than
raising objections under Article 79 of the Rules of Court, it
would be addressing issues of jurisdiction and admissibility
along with the merits of the present case. The Court
addresses these issues at the outset of this Judgment ”

                               3

Why Didn’t Japan Submit Any Preliminary
Objections before Going to the Proceedings
              on the Merits?

List of pending cases before the Court (As of 31 March 2014)

1. Gabčíkovo‐Nagymaros Project (Hungary/Slovakia)
2. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)
3. Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia)
4. Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
5. Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)
6. Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)
7. Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia
beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia)
8. Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua
v. Colombia)
9. Questions relating to the Seizure and Detention of Certain Documents and Data (Timor‐Leste
v. Australia)
10. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua)

                                               4

Why Didn’t Japan Submit Any Preliminary
Objections before Going to the Proceedings
              on the Merits?
 Possible reasons why Japan escaped to raise
 preliminary objections
    Japan wanted the Court to resolve this case very soon.
 Because of:
 1. Less likelihood of them being accepted by the Court?
 2. More likelihood of it winning the case on the merits?
 3. Preference of good relationship with Australia?
 4. Cost for this case?

                            5

Did Australia Establish Its Locus
        Standi in This Case?
Australia did not argue that it has incurred damage by
the Japan’s violations of international obligations.

“What injury, if any, has Australia suffered as a result of
Japan’s alleged breaches of the ICRW through JARPA
II?” (CR 2013/13, p.13)

“L’Australie, comme tous les autres Etats parties à la
convention de 1946, a un intérêt commun à ce que
I’intégrité du régime découlant de convention soit
maintenue.” (CR 2013/18, p.33, par.18)
                             6

Did Australia Establish Its Locus
        Standi in This Case?

Australia’s arguments on the standing were based on
the existence of the obligation erga omnes partes － the
obligation to all contracting parties to the ICRW.

The Court evaded the arguments on the standing.
 But assuming that the ICRW provides the obligations
erga omnes partes ?
 If so, what is the collective or common interest to the
contracting parties to the ICRW?

                            7

Did Australia Establish Its Locus
        Standi in This Case?

Why did Japan argue against the Australia’s standing?
 Possibly asking the standing question at this stage…
・ The impact of the Obligation to Prosecute or Extradite
Case?
・ The introduction of the standard of review?
     cf. “the attainment of any objective of the Agreement is being
impeded as the result of” “the failure of another contracting party
to carry out its obligations under this Agreement,” (Art.XXIII (1) (a),
of the GATT)
                                   8

Did the Court Take an Appropriate Way
  for the Interpretation of the ICRW?

Whether the whaling activities pursuant to the JARPA II
should fall into scientific research within the meaning of
Article VIII, paragraph 1, of the ICRW?
= the questions for the interpretation and application of
Article VIII of the ICRW

The Court
・ describes the ICRW as an “evolving” instrument
・ interprets this Convention in accordance with the rules on
the interpretation of treaties
                               9

Did the Court Take an Appropriate Way
  for the Interpretation of the ICRW?

 The Court’s idea that the recommendations by the IWC,
 which are not binding, to any or all Contracting
 Governments on any matters which relate to whales or
 whaling and to the objectives and purposes of the ICRW
 may be relevant for the interpretation of the ICRW or its
 Schedule, “when these are adopted by consensus or by
 a unanimous vote. ”
 ←The recommendation “adopted by consensus” shall
 be equivalent to an agreement of the contracting
 parties to the Convention?

                            10

Did the Court Take an Appropriate Way
  for the Interpretation of the ICRW?

As for the object and purpose of the ICRW, the Court
rejected both Japan’s and Australia’s arguments, and
observed that “neither a restrictive nor an expansive
Interpretation of Article VIII is justified.”

In reality, the Court constructs principles and
exceptions in the ICRW regime?
The moratorium on the commercial whaling is a
principle of this regime whereas scientific research
under the special permits is exceptional.

                            11

Where Do the Two Elements Come From and
Why Should They Be Examined Separately in
  Article VIII, Paragraph 1, of the ICRW?

 The terms “for purposes of scientific research” consist
 of “for purposes of” and “scientific research”.
 →This distinction permits the Court to avoid stepping
 into scientific problems.
 But…
 ・ the distinction is artificial and decisive?
 ・ “for purposes of” , as a standard of review, is rather
 of subjective nature?
 In light of the standard of review, JARPA II was a
 commercial whaling?
                             12

Didn’t the Court Apply the Standard of Review
   Too Much Strictly to the Conducts of the
            Japanese Authorities?

  “Article VIII gives discretion to a State party to the ICRW
  to reject the request for a special permit or to specify
  the conditions under which a permit will be granted”,
  whereas
  “whether the killing, taking and treating of whales
  pursuant to a requested special permit is purposes of
  scientific research cannot depend simply on that State’s
  perception” (Whaling in the Antarctic, para.61.)

                               13

Didn’t the Court Apply the Standard of Review
   Too Much Strictly to the Conducts of the
            Japanese Authorities?

  In the WTO, the idea of a deferential standard of review
  has been established due to the sensitivity of national
  sovereignty in the policy‐making of the Member States.
    ↓
  A strong presumption that a Contracting party has
  made the determination to grant special permits in light
  of careful consideration that the activities are carried
  out for purposes of scientific research.
  →the determination by the national authorities should
  be deferred to the maximum in the ICRW regime.
                             14

Is the Actori Incumbit Probatio Still Valid
    in the Future Cases of the Court?

 the Court asked “the authorizing State, which has
 granted special permits, to explain the objective basis
 for its determination.” (para.68)
    ↓
 the Court
 ・ affirmed that any scientific whaling pursuant to a
 special permit under Article VIII is an exception to the
 moratorium of commercial whaling?
 ・ placed the burden of proof on a State granting a
 special permit under that provision?
                              15

Is the Actori Incumbit Probatio Still Valid
    in the Future Cases of the Court?

  It is to be Australia who should have established the
 following by credible evidence?
 ・ the special permits granted by Japan in relation to
 JARPA II are not based on Article VIII
 ・ the determination by Japan is not objectively
 reasonable.
 Because the actori incumbit probatio is saying that the
 burden of proof weighs on the Applicant.

                             16

Why Can the Duty to Co‐operate with the IWC and the SC Be
 Imposed upon Japan as the Legal Obligation to Give Due
       Regard to IWC Resolutions and Guidelines?

  The Court
 ・ first may not consider the duty to co‐operation as
 binding because of choosing the terms, “duty” and
 “should.” (para.83)
 ・ later, seems even to find legally binding effect in it as
 the obligation to give due regard. (para.144)
 ← where the binding force of the obligation to due
 regard to IWC resolutions and Guidelines comes from?

                              17

Can Japan Keep Engaging the Whaling
 Activities in the Antarctic as well as in the
 North Pacific Ocean after this Judgment?

“The Court ruled that the Second Phase of the Japanese
Whale Research Program under Special Permit in the
Antarctic does not fall within Article 8, Clause 1 of
International Convention for the Regulation of Whaling
(ICRW). Such a decision is very regrettable and I am deeply
disappointed by the decision. However, Japan is a country
which places great importance on the international legal
order and the rule of law. Therefore, the Government of
Japan will abide by the Judgment of the Court.”
(Fumio Kishida, Minister for Foreign Affairs of Japan, Press
Conference on 1 April 2014)

                               18

Can Japan Keep Engaging the Whaling
Activities in the Antarctic as well as in the
North Pacific Ocean after this Judgment?

The process to acquire a warrant for a new whaling
programme in the Antarctic may not be so easy.
Because Japan must
・ convince the IWC that its intent to undertake a new
whaling programme complies with the Whaling
Judgment of the Court
・ present the programme for review and analysis by
the Scientific Committee, which would carry out a
higher level of survey.

                           19

Can Japan Keep Engaging the Whaling
Activities in the Antarctic as well as in the
North Pacific Ocean after this Judgment?
The Judgment may give certain legal influences on the
Japanese Whale Research Program under Special
Permit in the North Pacific Phase II (JARPN II).

Japan’s obligation to refrain from authorizing any
special permit whaling which is not for purposes of
scientific research within the meaning of Article VIII
“already applies for all States parties”(para.246)
→ the Court may recognize the obligations erga omnes
partes of Japan to the all Contracting parties to the
ICRW.
                           20

Will the Court Actively Exercise Its “Judicial Control”
    to the Subsequent Cases on the Violations of
             International Legal Rules?

  the endorsement of the obligations erga omnes partes
  ・ the Obligation to Prosecute or Extradite Case
  ・ the Whaling Case
  → the Marshall Islands to file with the Court its Applications
  against nine States

  For the Court to have more opportunities in near future to
  decide on the alleged violations of international obligations
  under a treaty by a State party to it
  → another State party, notwithstanding no damage to itself,
  may be given any remedies only for the violation of the
  treaty obligations.

                                21

Will the Court Actively Exercise Its “Judicial
 Control” to the Subsequent Cases on the
  Violations of International Legal Rules?

Possible reactions from States
・ Denunciation of the declaration on the Optional
Clause of the Statute of the Court?
・ Reservations on expelling the dispute which a State
refers to the Court without any damage to itself?

The Japan’s position after the Whaling Case?
  Respect for the rule of law, etc….
                           22

Conclusions

・ The Whaling Case is the first case in which Japan has
appeared before the Court, whether as an Applicant or
as a Respondent.
     the need to accumulate considerable experience
before the Court
・ The Judgment by the Court is one of the methods for
resolving a dispute.
     the need to continue the dialogues between the
parties concerned for the solution

                           23

Thank you !!

          Whaling in the Antarctic:
   The ICJ Judgment and Its Implications
Kobe University Centre for International Law
             31 May‐ 1 June 2014

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