Whalewatch: waiting for the ICJ decision

‘‘La Cour!’’ rumbled the tall usher in the frock coat as he opened a door for 16 judges to file into the extraordinary case to decide what is lawful in the killing of whales. The usher’s bass boom, ‘‘the court!’’, heralded each session in the stained glass-lit chamber of the International Court of Justice in The Hague over long weeks of proceedings that saw equally rich legal theatre.

Only the second matter after the 1973 nuclear tests case that Australia has brought to the court, ‘‘Whaling in the Antarctic (Australia v Japan: New Zealand intervening)’’ was well stocked with verbal grenades. Japan’s counsel declared that Australia thought itself on a civilising mission and a moral crusade, unfairly painted it as a rogue state and affronting the dignity of its so-called friend. The Australian legal argument was inconsistent and shifting, and it twisted others’ words, Japan argued.

For its part, Australia said Japan’s cultural imperialism claim was offensive. Japan came before the world’s highest court with a case devoid of legal argument, and instead offered silence, contradiction and disparagement. Now the 16 justices from countries as powerful as the US and as small as Somalia have retired to consider their judgment.

Their decision will have broad significance. It’s the first time that this final arbiter of legal disputes between nations has dealt with a global treaty for the conservation of endangered species, Australian counsel James Crawford said. At this case’s heart, the judges must decide whether Japan’s Antarctic whaling program, known as

JARPA II, is allowed under the International Whaling Commission’s scientific permit clause, article eight.

‘‘In essence, Australia respectfully requests the Court to make orders to bring JARPA II to an end,’’ Attorney- General Mark Dreyfus said. ‘‘Because the large-scale killing of whales under that program is commercial, and wholly outside what is permitted by article eight of the convention.’’

Japan’s defence is that this whaling has always been within IWC rules, which in article eight clearly give countries the right to issue scientific permits under their own terms. Japan’s counsel, Vaughan Lowe, QC, said there might be differences among scientists about Japan’s whaling, but: ‘‘the court ... can no more impose a line separating science from non-science, than it could decide what is, or is not, art’’.

The judges, including Australia’s appointment, Hilary Charlesworth, meet within weeks to hear a preliminary discussion led by ICJ president Peter Tomka, of Slovakia. Each judge then writes a note about the case, which is copied to the others. They meet again, deliberate on a majority judgment, and elect by secret ballot two judges to forma drafting committee – joined by Judge Tomka if he is in the majority. Reviews follow, dissenters declare opinions, and a final vote is taken.

It’s a big task for a bench that also has other cases on the go. Dreyfus is hopeful the court will give its judgment before the next whaling season, but others think the next round in the conflict between the whaling fleet and Sea Shepherd may be under way before there is a decision.

‘‘Given its complexity, this is not a case that I think will be decided quickly,’’ said Don Rothwell, professor of international law at the ANU. ‘‘This could take six months or even longer.’’

When it does climax, observers say there are three possible outcomes: the court could reject the Australian case outright; it could find Japan’s whaling illegal and ban it; or it could find a middle ground recognising Japan’s rights, and Australia’s case for excessive treaty breach.

Neither side asked for anything less than full victory. Australia wants the whaling stopped, and Japan wants the case thrown out. Should the court find for Australia, then a long campaign by anti-whaling nations and global conservation organisations would be won.

Dreyfus said he had no doubt that Japan would abide by the decision of the court. But Japan’s deputy foreign minister, Koji Tsuruoka, revealed the iron fist in Tokyo’s velvet glove when he hinted to the court that the wrong

decision could make it quit the IWC. ‘‘What would happen to stable multilateral frameworks when such assurances disappear?’’ Tsuruoka said. ‘‘When one morning suddenly you find your state bound by the policy of the majority and the only way out is to leave such an organisation?’’

Such warnings have been issued so often by Japan at IWC meetings that Tsuruoka’s real meaning this time is clouded. Japan is seen as a country that strongly emphasises the rule of law, and compliance with it. But Steven Freeland, professor of international law at UWS, said it was open to Japan to pull out of the IWC.

‘‘Essentially, they could be out of the treaty by 30 June next year – and not be bound by the scientific permits clause, or the moratorium on commercial whaling. They would, however, have to weather very heavy diplomatic and political criticism.’’

On the other hand, if the court was to find for Japan, its scientific whaling program would be cemented. In 2011, after its whalers were forced out of the Antarctic by Sea Shepherd, Japan undertook an internal government review. Far from calling a halt, the government chose to pour money in, clear debts and refurbish the world’s only factory whaling ship, Nisshin Maru.

Other nations also may be emboldened. A year ago, South Korea announced a scientific whaling program, before strong diplomacy, particularly from Australia, forced an about-face.

Dreyfus promised that if Australia lost the case, it would continue to campaign against commercial whaling. But Labor under prime minister Julia Gillard refused to commit a patrol vessel to keep the Antarctic peace. What leading academics, and Dreyfus to an extent, are counting on, is the ICJ’s tendency to choose a middle course in its judgments. No one would be an outright winner. Rothwell said the wording of article eight clearly showed that Japan could issue itself a scientific permit.

‘‘The court can’t rewrite article eight,’’ he said. But it was on the cards that the court could come back with the view that JARPA II was not legitimate science – or if it was, that the quotas of up to 935 minke whales, 50 fin whales and 50 humpbacks far exceeded legitimate science.

‘‘The court could open the door for Japan to reform its program,’’ Rothwell said. ‘‘The court might come up with a figure, that’s one possible outcome. Or it could invite Australia to go back to the court with a submission.’’ Dreyfus said Australia held open the prospect that much smaller-scale lethal scientific research could be legitimate. A middle-ground finding could bring the issue neatly back to where this case began. Australia went to court in 2010 after the collapse of diplomatic talks in which it proposed a Japanese phase-out, under reduced quotas.