Call for Submissions: Melbourne Journal of International Law

The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 18(1). The deadline for submissions is January 31, 2017MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil@unimelb.edu.au. For more information please visit http://law.unimelb.edu.au/mjil/submissions.

ICJ anti-whaling judgment appears to have whetted Japan opponents’ appetites

IWC latest logo 210x64Some lawmakers and lobbyists in Japan displayed their distaste for whaling bans this week with a whale-meat eat-in in Tokyo. The Japan Daily Press reported:

‘In an act of defiance against a recent ruling by the International Court of Justice (ICJ) halting the nation’s whale hunts, pro-whaling legislators and lobby group gathered on Tuesday to eat whale meat while pledging to continue what they call one of the country’s centuries-old traditions.’

Stoking these opponents’ appetite was the March 31 judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). (Prior posts here and here.) The Hague-based court held 12-to-4 that Japan had violated the 1946 International Convention on the Regulation of Whaling by granting permits to harvest 3 species of whales areasin an area of the seas known as the Southern Ocean Sanctuary. (In yellow on map at right; see p. 3 here.) Japan asserted that a scientific research exception to the Convention’s whaling ban justified the hunts. But a majority of the ICJ disagreed, in a ruling that Rutgers Professor Cymie Payne analyzed in a recent ASIL Insight. (credit for above logo of the International Whaling Commission, which monitors compliance with the Convention)

Yesterday, the Japan Times reported, Japan’s government announced that it would still engage in what it calls research whaling, albeit at a reduced rate and in regions other than the area of concern to the ICJ case. The report indicated that the decision to go forward marked a victory for Japan’s Fisheries Ministry and a defeat for its Foreign Ministry.

Particularly vocal among the opponents of the ICJ’s ruling has been the man who’s served as Fisheries Minister since last December: Yoshimasa Hayashi, a Harvard Kennedy School graduate. Hayashi spoke at the Tokyo banquet on Tuesday. And in a February interview with Japan Times, he explained his position:

‘Japan is an island nation surrounded by the sea, so taking some good protein from the ocean is very important. For food security, I think it’s very important … We have never said everybody should eat whale, but we have a long tradition and culture of whaling. So why don’t we at least agree to disagree? We have this culture and you don’t have that culture.’

Payne’s Insight agreed that, notwithstanding the March 31 issuance of the ICJ’s opinion, resolution of “fundamental cultural conflict[s]” awaits another day.

(Cross-posted from Diane Marie Amann)

Australia’s Increasingly Restrictive Policies Block Asylum Seekers From Entry

Australian Prime Minister, Kevin Rudd, recently announced a strict new policy mandating that all asylum seekers arriving by boat would be sent to a refugee-processing center in Papua New Guinea. This policy change has been covered widely in the media, through the New York Times, the BBC, and other news outlets. According to the Australian Prime Minister’s announcement, asylum seekers, by arriving by boat without a valid visa, will forfeit any right to claim asylum in Australia. Rather, if an asylum seeker is determined to have a genuine claim to refugee status, she will be resettled in Papua New Guinea. Australia is, of course, a signatory to the 1951 United Nations Refugee Convention and the 1967 Protocol. While this development is disheartening, it is not shocking given the political arena and the long history of restrictive asylum policies in Australia. Australia’s policies with regards to asylum seekers arriving by sea have long been controversial. In August 2001, Australia turned away a Norwegian vessel in distress carrying over 400 asylum seekers, focusing international attention on the intersection of maritime rescue law and refugee law. For coverage of this incident and in depth coverage on related issues, see Professor Niels W. Frenzen’s Migrants at Sea blog. Amnesty International’s Australia Chapter also provides regular reports and coverage on the treatment of asylum seekers and refugees in Australia.

Australia is, of course, is only one of several countries to turn away asylum seekers arriving by sea. Indeed, the United States also participates in interdiction at sea. In fact, our own Supreme Court explicitly found this practice to be in line with our international obligations even where, in that case, the US was interdicting Haitians and returning them to the country of feared persecution. See Sale v. Haitian Centers Council, 509 U.S. 155 (1993). Whether Australia’s evolving interdiction policy will be judged by its own courts remains to be seen.

Whaling at the ICJ – Oral Proceedings in Australia v Japan

Common Minke Whale Photo By Simon Pierre Barrette Creative Commons ShareAlike License
What had seemed a quixotic effort to stop Japan’s Southern whaling program using international law is looking like a more even fight. In the oral proceedings underway for Australia’s challenge to Japan’s whaling program (JARPA II) at the International Court of Justice, Japan argues that—in a world of more than 7 billion people—cultural differences must be respected and the International Convention on the Regulation of Whaling (ICRW) must be applied with a “margin of appreciation” for Japan’s interpretation of the treaty. (Australia notes that the concept of a margin of appreciation developed in the European Union Courts to allow states to fine-tune EU law according to national culture and social policy, and is not a rule of international law.)

According to Japan, it hunts whales to collect scientific information as permitted by an exception to the global moratorium on “harvesting” whales under the ICRW. Australia argues that JARPA II has no scientific basis or merit, and that Japan conducts it in the manner of a commercial venture, not scientific research; it quotes a statement made in the Japanese Diet vowing to use the scientific exception to continue whaling.

New Zealand, intervening as a party to the ICRW, stresses that the treaty was intended “to replace unilateral whaling with a system of collective regulation,” whether a state’s interest is in using whales or protecting them for their own sake. Japan’s actions, Australia argues, have in effect reduced its treaty obligations to facultative ones and so dissolved the treaty rights of all other treaty members.
Australia has decided not to make claims based on two other conventions, CITES and the Convention on Biodiversity mentioned in its application (for discussion of these, see Don Anton’s ASIL Insight).

The most interesting arguments have discussed the nature of scientific research and its relation to law. Japan argues that “the case concerns the legality of Japan’s activities under international law and not ethical values or the evaluation of good or bad science” and that the ICJ has no role in evaluating JARPA II. It has submitted very little by way of scientific evidence to support the validity or productivity of the whaling program.

In contrast, Australia and New Zealand emphasize that the questions before the Court are straightforward and offer the Court a number of criteria to assess whether JARPA II is scientific research. These include the lack of peer review of JARPA II, the arbitrary determination of sample sizes (i.e., the number of whales to be killed each year), and the insistence on lethal methods. The presentation and cross-examination of experts is a highlight of the video; a great change from the criticized approach to experts in the Pulp Mills case. The judges’ numerous questions indicate that they are interested in the scientific arguments, and not deferential to Japan’s claim of right to determine unilaterally whether JARPA II is, in fact, research.

Although killing whales—particularly endangered species such as humpback and fin whales, both of which are included in Japan’s whaling program—is an issue of grave concern to many states and nongovernmental organizations, only New Zealand has intervened and the ICJ has not invited amicus briefs or expert opinion from non-parties.

The jurisdictional issue has received scant attention. It is possible that the Court may, in the end, accept Japan’s argument that it does not have jurisdiction. While that may change the dynamic of the conflict over whaling, there are still many political avenues where it will continue to play out. Although anti-whaling activists have thwarted the whalers in recent years—acknowledged in the Japanese oral argument—Japan’s Institute of Cetacean Research has retaliated with a lawsuit in U.S. court and won a favorable decision in the 9th Circuit.

A decision is expected from the ICJ by the end of the year around the time the next whaling season will begin. The oral proceedings will continue with Japan’s second round of oral argument on 15 July: live and archived webcasts and transcripts are available. It provides an exceptional opportunity to watch many of the great international litigators, including Laurence Boisson de Chazournes, at work.