Each summer, like clockwork, the Japanese whaling in the Southern Whale Sanctuary gets its fair share of news coverage. This year, three protestors boarded the Japanese whaling vessel Shonan Maru 2, prompting calls that the government take direct action to prevent whaling boats from entering Australian waters. There is widespread community opposition to whaling, and even further outrage at what is commonly seen as an insufficient response from the government. Australia has both political, conservation and economic interests in the Southern Ocean, the question is, how hard should we pursue these interests, and what are we risking by doing so?

Australia has opposed commercial whaling for as long as most of us have been alive. Commercial whaling was supposedly prohibited under the International Convention for the Regulation of Whaling (ICRW). However, Article 8 of the Convention states that a state may nonetheless engage so called “Scientific Whaling”. Under the second of its JAPRA permits (Japanese Whale Research Program under Special Permit in the Antarctic), the Japanese government has issued permits for the sampling of 850 (±10%) minke whales and 10 fin whales per season. No limit is explicitly placed on the number of whales which may be taken under scientific permits in the ICRW. The issue therefore becomes what are the possible responses to whaling, which of these are likely to be effective, and what are the risks at play in these options.

Domestically, the legal system is hamstrung in its ability to deal with whaling. However, in 2008, Humane Society International won an apparent victory for anti-whaling forces, with the Federal Court granting an injunction which supposedly prohibited Japanese whaling ships from entering the Australian Whaling Sanctuary. However, nothing, to this date, has been done to enforce this decision. Theoretically, domestic law has the ability to stop Japanese whaling, but enforcing the HSI decision, or other domestic actions, is incredibly risky. Australia’s jurisdiction over the Southern Whaling Sanctuary is not widely recognised, and forcibly seeking to prevent Japanese action to the Sanctuary could have calamitous consequences.

Australia’s whale protection regime is flimsy at best. But were Australia to seek to force Japan out of the Southern Whale Sanctuary, and were Japan to successfully challenge Australia’s right to control these areas of the ocean, then Australia could be open to huge compensation claims from the Japanese.

The other avenue for contesting Japan’s actions is internationally. On 30 May 2010, Australia took Japan to the International Court of Justice (ICJ), arguing that it is in breach of its obligations under the ICRW, as well as other international obligations for the preservation of marine mammals. Australia is arguing that Japan has breached Paragraph 10(e) of the Schedule (10(e)), which requires a good faith zero catch limit for commercial whaling, and Paragraph 7(b) of the Schedule which requires a good faith undertaking not to catch humpback and fin whales in the Southern Ocean Sanctuary.

The international law system works rather differently from any domestic legal system. Australia is able to challenge Japan’s actions under the ICRW, as both states are signatories to the convention. The ICJ is able to hear the case as both states have submitted to its jurisdiction. The ‘law’ that the court will consider is the convention itself. The court may also have regard to what is customary practice of states in the matters of whaling, the general principles of law of states and, only as a subsidiary means, the writings of international law scholars.

It is likely that the case will turn on whether Japan is circumventing the ban on commercial whaling, and therefore the object and purpose of the ICRW.  Iceland previously made reservations regarding 10(e) and did not consider themselves bound by the passage. However, the International Whaling Commission (IWC) found that the reservation went against the object and purpose of the ICRW and denied Iceland membership. Japan lodged reservations to 10(e) and withdrew them at almost the same time as the first JAPRA came into effect. Whilst the ICJ is not bound by any opinion of the IWC, keeping in mind that 10(e) has been read as going to the object and purpose of the ICRW, and Japan implemented its scientific programs around the same time as it withdrew its reservation, Japan could be found to have breached its ICRW obligations and the ICJ could find in favour of Australia.

If the ICJ finds in favour of Australia, it may declare Japan’s actions in breach of its international obligations, order that Japan cease implementation of JAPRA II, revoke any permits and assure that it will not perform similar actions under another scheme. Effectively, Japan would be prohibited from whaling in the Southern Whale Sanctuary. A ruling to that effect is, short of Japan voluntarily ceasing its actions through negotiation, just about the best Australia can hope for. Unlike Australia’s self-declared jurisdiction over the Southern Whale Sanctuary, an ICJ ruling has the advantage of deciding the case on the basis of Japan’s voluntary signing of the ICRW. Japan’s is more likely to adhere to a decision based on conditions it has already agreed to, which is really what international law is all about.

Katelyn and Sam co-founded the ANU International Law Society.

Katelyn is the President of the ILS this year, and Sam works at the Australian Government Solicitor.