Why whaling will remain a thorny issue for Australia–Japan relations

Shinzo Abe’s July visit to Australia will be the first for a Japanese prime minister since 2007. It comes at a good time for bilateral relations following Tony Abbott’s ‘closest friend in Asia’ praise for Japan in October 2013, and the success of Abbott’s April 2014 visit to Tokyo. Yet the vexed issue of Japanese whaling in the Southern Ocean continues to dog the relationship, even after the judgment of the International Court of Justice (ICJ) on 31 March 2014.

Australia brought the Whaling case to the ICJ in May 2010 to bring Japan’s JARPA II whaling program to an end and to remove the rift that had developed between the two countries over Japan’s Southern Ocean whaling program. Australia’s case before the ICJ did implicitly acknowledge that Japan may seek to undertake a future Southern Ocean whaling program. Australia understood that its ability to bring about a complete cessation of Japanese whaling in the Southern Ocean was limited. Instead, Australia sought to ensure that any future conduct by Japan would comply with international law.

Australia’s legal argument focused on Article VIII of the 1946 International Convention for the Regulation of Whaling (ICRW), which allows parties to the convention to issue ‘special permits’ for the ‘purposes of scientific research’. Australia argued that Japan’s JARPA II program was not consistent with the proper interpretation of Article VIII, and as such contravened the provisions of the ICRW under international law. Yet, as Australia was aware, the ICJ is incapable of striking down Article VIII as a matter of pure treaty law and Article VIII will remain in the ICRW allowing Japan to issue future ‘special permits’.

Australia also did not challenge Japan’s conduct of its North Pacific whaling program (JARPN II). In principle, because Australia’s application was based on contesting Japan’s use of Article VIII special permits, Australia could have expanded it to challenge both JARPA II and JARPN II. But this would have significantly expanded the scope of the Australian case, most likely resulting in delays and additional complexities in both the legal argument and the scientific evidence.

The ICJ’s judgment found that JARPA II contravened Japan’s obligation to not engage in commercial whaling and that the JARPA II special permits do not fall within the provisions of Article VIII. The ICJ ordered that ‘Japan shall revoke any extant authorisation, permit or licence granted in relation to JARPA II, and refrain from granting any further permits in pursuance of that programme’.

The consequence of these orders was that JARPA II was to cease immediately. But, as Japan had ended JARPA II whaling for the season, the court’s orders more immediately relate to the 2014–15 season. Soon after the judgment, Japanese government spokesman Noriyuki Shikata indicated Japan would abide by the ICJ’s decision and cease any future JARPA II conduct.

Australia has been successful in achieving its immediate objective to bring about an end to JARPA II — and that form of purported ‘special permit’ whaling will not be undertaken again in the future. But some dimensions of the court’s judgment and Japan’s subsequent conduct are concerning.

First, the ICJ made clear (in paragraph 246) that Article VIII of the ICRW remains intact and that Japan can issue further special permits consistent with Article VIII.

Second, soon after the judgment the Japanese whaling fleet commenced JARPN II activities for the 2014 season. While the ICJ’s judgment does not apply to JARPN II, it is concerning that Japan continued special permit whaling so soon after its use of these permits in the case of JARPA II was found to be unlawful.

Third, there are indications that Japan will seek to conduct some form of Southern Ocean whaling program. On 9 June, Abe indicated to a Japanese parliamentary commission that Japan would continue with its tradition of whaling and was planning to resume special permit whaling in the Southern Ocean in the 2015–16 season.

If Japan does continue whaling in the Southern Ocean not only will Australia be greatly disappointed but it will also raise suspicions that Japan is seeking to circumvent the ICJ’s ruling and its international legal obligations. Whether these issues are raised in bilateral discussions during Abe’s July Canberra visit remains to be seen, but what it does suggest is that the thorn in the side of the otherwise excellent bilateral relations between Australia and Japan will remain for some time to come.

Donald R. Rothwell is Professor of International Law at the ANU College of Law, The Australian National University.