ICJ

Open Letter to the African Union: Africa’s Opportunity to Address the Gender Diversity Problem at the International Court of Justice

/ J. Jarpa Dawuni, Ph.D. / Leave a comment

Women of Africa are increasingly demonstrating their resilience in global leadership, financial institutions, international criminal law, the United Nations, the World Bank and the International Criminal Court to name a few. But there is more that needs to be done— the November 11, 2020 elections to the bench of the International Court of Justice (ICJ) provides a unique opportunity for member-states of the African Union to once again demonstrate their support for gender equality by supporting the candidature of Judge Julia Sebutinde of Uganda—the first and only African woman to serve on that court.

Currently, women represent only 20% of the judges on the bench of the ICJ. As the ICJ is poised to celebrate its 75th Anniversary in April 2021, it is noteworthy that historically, out of the 108 judges since the court was established, only four have been women. To date, the principal judicial organ of the United Nations remains the most gender-imbalanced international court in the world. This imbalance has prompted scholars and advocacy groups such as the Gender Equality Campaign (GQUAL) to engage in advocacy for diversifying the ICJ bench. On November 11, 2020, elections will be held to fill five judicial positions on the ICJ. Of the eight candidates on the ballot for this election, three are women; Julia Sebutinde of Uganda, Hanqin Xue of China, and Maja Seršic, of Croatia.

In 2012, Judge Julia Sebutinde made history as the fourth woman to be elected to the bench of the ICJ in over 60 years of the Court’s existence. Judge Sebutinde’s election was remarkable for reasons beyond her gender: she was also the first woman from the African continent to be elected to the ICJ, compared to the 14 African male judges who sat on that court before her. As an international judge, Judge Sebutinde’s appointment signaled the intersections of race, gender, geographical location, and other identities that women from non-western societies must navigate. Judge Sebutinde’s journey to the ICJ, was as a combination of an unwavering ambition to become an international judge, and professional experiences spanning 41 years, having has served as a judge and jurist at national and international levels, including as a judge of the High Court of Uganda and the Special Court for Sierra Leone. 

Judge Sebutinde’s multiple and intersecting identities of race, gender, geography, as well as her professional experience  are reflective of her journey to the international bench, a journey which she describes as ‘different threads that were woven into a kind of cloth, the kind of cloth that I now am’ (quoted in Judge Julia Sebutinde: An Unbreakable Cloth,” in International Courts and the African Woman Judge: Unveiled Narratives.

Judge Sebutinde’s journey as the first woman from an African country to sit on the ICJ is symbolic of the increasing number of African women judges sitting on international courts since 2006.  As one of the most gender-imbalanced international courts, the upcoming elections in November to fill the five vacant seats on the bench of the ICJ provides a unique opportunity for the Africa group of States to back the nomination and election of a strong candidate—who just so happens to be a woman!

Judging Julia Sebutinde

On Merit

Judicial selection processes to international courts aspire to meet the highest standards of merit, integrity, professionalism, equal opportunity, inclusion, and diversity. Julia Sebutinde possesses a total of 41 years of experience as a judge and jurist at national, regional, and international levels. Her expertise spans public international law, international humanitarian law, international human rights law, the law of the sea, environmental law, and international criminal law. As a judge at the ICJ since 2012, Judge Sebutinde has contributed to 40 Judgments, 65 Orders of Court, and an Advisory Opinion. Besides her judicial functions, she has served on the Court’s essential committees, including the Chamber of Summary Procedure, the Budgetary and Administrative Committee, and Head of the Information and Communications Technology Committee of the Court. As an incumbent judge, she has experience in the internal operations of the Court. She has initiated key internal reforms that have contributed to strengthening the ICJ internally, including internal justice for staff members and the modernization of the Court’s processes.

Judge Sebutinde’s knowledge and grasp of international law builds on her experiences as Judge of the Special Court for Sierra Leone (SCSL) (2005-2010); and Presiding Judge of Trial Chamber 2 of the Special Court for Sierra Leone (2007-2008 and2010-11). Judge Sebutinde’s contribution to jurisprudence is captured by international law professor Nienke Grossman when she notes;

Among Judge Sebutinde’s most noteworthy individual opinions during her time on the Special Court are a separate concurring opinion regarding “forced marriage” in the AFRC Trial and a dissenting opinion on whether to accept a late brief by defense counsel in the Taylor trial. Judge Sebutinde’s separate concurring opinion in the AFRC trial explored the legal contours of “forced marriage” and highlighted the testimony of expert witnesses on the subject.

Judge Sebutinde has written many declarations and separate opinions appended to the judgments of the ICJ, thus contributing to its jurisprudence, including a separate opinion to the Chagos Advisory Opinion, in which she elaborated on the right to self-determination in the context of decolonization as having attained peremptory status (jus cogens) under customary international law, from which no derogation is permitted.

Judge Sebutinde has delivered numerous papers and public lectures and holds several international awards, including two Honorary Doctorates, in recognition of her contribution to international peace and justice. Having served on the ICJ bench since 2012, Judge Sebutinde brings with her the knowledge and skills of an incumbent judge who has demonstrated that she understands the internal workings of the Court and has contributed to international law through her judicial opinions.

On Process

Fourteen male African judges preceded the arrival of Sebutinde as the first African woman judge at the ICJ. The practice has been for the African Union (AU) to endorse the re-election bid of incumbent judges contesting for a second term. Judge Julia Sebutinde is the first and only African woman on the Court, and the first judge whose bid for a second term has not been formally endorsed by the AU and is instead challenged by two male competitors. While AU endorsement does not necessarily mean an automatic election, the fact that the first woman candidate’s bid for re-election has not been endorsed by the AU, calls for further reflection on promises of gender equity in representation. The AU must honor the customary practice of supporting incumbent candidates for re-election by openly endorsing the re-election bid of the incumbent candidate who just so happens to a woman.

On Gender Equality

Gender equality does not mean that women should be nominated or endorsed at the expense of men. The ICJ’s infamous historical record as one of the most gender-imbalanced courts in the world requires deliberate action in addressing this disparity. All the former male African judges of the ICJ received the AU’s endorsement, and each one served two terms (unless they died in office or voluntarily resigned). Why is the AU refusing to endorse the first and only African woman judge? The lack of endorsement by the AU should send a chilling signal to all member States, international organizations, civil society advocacy groups, women’s organizations, and all individuals interested in gender diversity, inclusion and equal opportunities for all sexes. The AU must affirm its commitments on gender equality contained in multiple legal instruments at the regional and international levels. The election of international court judges should be of concern to all members of the international community. As a principal judicial organ of the United Nations, the bench of the ICJ should symbolically reflect the world’s gender diversity.

The AU must hold true to the progress within the AU system as demonstrated by the election of women judges to the ACtHPR—making it the most gender-balanced court in the world currently. In electing judges to the ICJ, the AU and individual African states have been presented with a unique opportunity to showcase to the world that qualified African women candidates have equitable and strong support from member-states of the AU to serve in international organizations. The AU must live up to its commitment to promoting gender equity, equality, inclusion, and diversity as espoused in the Maputo Protocol. The AU must continue the progress made, as seen in the number of women represented in the African Commission and the African Court (ACtHPR). The African Union must live up to its espousal of gender equality by endorsing the incumbent candidate’s re-election—who has the merit, comes with a wealth of international law experience, and just so happens to be a woman!

**An earlier version of this post was published on the blog of the Institute for African Women in Law.

“Bemba and Beyond,” reflections on command responsibility

/ Diane Marie Amann / 2 Comments

One week after the International Criminal Court Appeals Chamber acquitted a Congolese politician-warlord whom a Trial Chamber unanimously had convicted of rape, pillage, and other crimes, practitioners and scholars continue to debate the decision’s significance. Indeed, the case, Prosecutor v. Bemba, has been invoked in both the papers so far presented at the 2-day ICC Scholars Forum now under way at Leiden Law School’s Hague campus.

My own initial thoughts – concerned not about the decision’s fact-based details but rather to its refashioning of the legal doctrine of command responsibility – have been published at EJIL: Talk!, the blog of the European Journal of International Law. My post, entitled “In Bemba and Beyond,” discusses command responsibility as “a time-honored doctrine with roots in military justice and international humanitarian law.” Placing this appeals judgment in the context of other decisions, the post warns:

“Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible.”

Full post here.

(Cross-posted from Diane Marie Amann)

Women, accustomed to the International Court of Justice

/ Diane Marie Amann / Leave a comment

Standing beneath the portrait of Dame Rosalyn Higgins, the 1st woman judge and 1st woman president of the International Court of Justice, are, from left: University of Georgia School of Law students Lyddy O’Brien and Evans Horsley; IntLawGrrl Kathleen A. Doty, now serving as Interim Director of Georgia Law’s Dean Rusk International Law Center; student Jennifer Cotton; and IntLawGrrl and Georgia Law Associate Dean Diane Marie Amann.

HAGUE –  A briefing at the International Court of Justice was part of today’s Hague leg of the Global Governance Summer School that we at the University of Georgia School of Law Dean Rusk International Law Center are co-presenting with KU Leuven Centre for Global Governance Studies. Providing insights into the work of the court was Dr. Xavier-Baptiste Ruedin (right), Legal Adviser for Judge Joan E. Donoghue. As IntLawGrrls well know, she’s one of three women who are now permanent members of the court, and one of only four in the court’s 72 years.

Recalling the photo at left, on which I posted a few years back, couldn’t resist making the “Women of the Global Governance Summer School” photo above.

Thus does international custom begin to crystallize.

 

 

‘Nuff said: Sebutinde on women judges, international courts

/ Diane Marie Amann / Leave a comment

sebutinde_hires“I’ve often heard people say, even women say, during the campaign and after, that it’s not a big deal for a women to be on this court. They have no idea what a deal it is. It is a big deal.”

So commented Judge Julia Sebutinde, reflecting on her tenure at the International Court of Justice. She was quoted in “Africa’s most senior female judge: ‘Would these men even listen to me?’, a November profile published in South Africa’s Daily Maverick. Sebutinde has served on the court since 2012, following a lengthy U.N. election process; she is the 4th woman, and the 1st African woman, to be elected in the court’s 70-year history.

Sebutinde began her distinguished career as a lawyer and judge in her native Uganda. She also has served as a judge both on the Special Court for Sierra Leone and on the International Criminal Court. In the Daily Maverick article, she not only speaks of her work at the ICJ, but also offers criticism of current opposition to the ICC. (credit for ICJ photo)

Go On! ESIL – European Court of Human Rights Conference, 5 June

/ Karen Hoffmann / Leave a comment

A one-day conference entitled The European Convention on Human Rights and General International Law is being organized jointly by the European Court of Human Rights and the European Society for International Law. The programme includes presentations by ten judges from the European Court of Human Rights, as well as presentations by judges from the International Court of Justice, and other judges and international law scholars.

The conference will take place on Friday 5 June at the premises of the Court in Strasbourg.

Program and more information here.

To register for this event, please send an email to Rose During (Rose.During [at] echr.coe.int) with your name and affiliation.

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

/ Diane Marie Amann / Leave a comment

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)

Sharing in joy at annual WILIG luncheon

/ Diane Marie Amann / Leave a comment

wiliguseWASHINGTON – The President of the International Court of Justice spoke for a banquet room full of women and men yesterday when he said, “I am just here to share in the joy of my colleagues.” The colleagues of whom ICJ President Peter Tomka spoke were Judges Joan E. Donoghue, Julie Sebutinde, and Xue Hanqin. The three women received the Prominent Women in International Law Award during the Women in International Law Interest Group luncheon, a highlight of every American Society of International Law annual meeting. As a special treat, retired U.S. Supreme Court Justice Sandra Day O’Connor dropped in to congratulate what she called “the women’s division” of the World Court bench.

Each of the honored judges made brief but inspiring comments.

Judge Donoghue, a career U.S. State Department lawyer before she joined the ICJ in September 2010, focused her comments on gender disparity in international law. In a recent three-year period, “93 percent of the arguments judges of the ICJ heard came from men,” Donoghue said, citing “A Study of Lawyers Appearing before the International Court of Justice, 1999-2012,” a forthcoming European Journal of International Law article by Cecily Rose, an IntLawGrrls contributor, and Shashank Kumar. In calling for greater diversity, Donoghue reasoned:

‘We are a world court, and international law in the main is for the world.’

Flashing a broad smile, Judge Xue said, “Indeed, this is a great honor and privilege to receive this award. It’s really like an higgOscar.” Xue, a former diplomat and law professor in China, is senior to Donoghue on the court by a few months. She recalled two women who had preceded both of them – Dame Rosalyn Higgins (right), whose service from 1995 to 2009 included abastid term as the ICJ’s President, and Suzanne Bastid (left), an ad hoc judge in the 1980s. Xue said:

‘Today we have so many women on the court not because today women are so much more intelligent, but because many international lawyers, men and women – I want to stress, men and women – have fought so hard for women’s rights.’

She accepted her award “as a tribute to all women legal professionals working in the field of international law, in recognition of their dedication to international peace and development.”

Having three women on the bench, Judge Sebutinde said, “is indeed a pinch-yourself moment for me.” Sebutinde’s pre-ICJ career included service as a judge in her homeland of Uganda and on the Special Court for Sierra Leone. Sebutinde thanked her colleagues Donoghue and Xue, stating, “I don’t think I would even have had the courage to apply if they were not there.” Sebutinde urged the court to increase public outreach. It is particularly important in her own region: “It is no secret I come from eastern Africa where there has been a lot of conflict for decades. The first thing that nations think of for settling their differences is war. It is never the International Court of Justice. So it’s a great responsibility, especially for judges who come from Africa, to sell the court to our part of the world.”

Adding their own words were audience members  – judges, law students, law professors, law librarians, and practicing lawyers – who took part in WILIG’s introduce-yourself tradition. Among them was International Criminal Court Prosecutor Fatou Bensouda, who recalled that as a young girl in Gambia, she had felt “helpless” after trying in vain to get police to protect a relative who was suffering domestic violence. “That is why I went to law school,” said Bensouda, another IntLawGrrls contributor. With reference to her current work, she added, “There must be accountability for those crimes, those who perpetrate those crimes. There must be rule of law.” Meanwhile, Washington-based attorneys Lucinda Low and Jennifer A. Hillman (a former member of the World Trade Organization Appellate Body) urged “constant vigilance” to ensure that once earned, gains in women’s participation are maintained.

A University of California-Davis Law student who hails from Kazakhstan summed up the celebratory spirit. Aigerim Dyussenova, known to her new WILIG friends as Aika, proclaimed:

‘This is the happiest day of my life.’

(In photo at top by IntLawGrrl Fionnuala Ní Aoláin, , IntLawGrrls and WILIG Co-Chairs Clara Brillembourg – a cardboard cutout of foremother Eleanor Roosevelt behind her – and Christie Edwards address the luncheon audience. Looking on are, from left, Judges Xue Hanqin, Joan E. Donoghue, and Sebutinde, along with Justice O’Connor. Cross-posted at Diane Marie Amann and ASIL Cables.)

Tempest over a Temple 2

/ Beth Van Schaack / Leave a comment

The International Court of Justice recently issued a final judgment in The Case Concerning The Temple Of Preah Vihear, Request For Interpretation Of The Judgment Of 15 June 1962 (Cambodia v. Thailand) (the full case docket is here).  The judgment confirms (again) that the contested temple is on the territory of Cambodia, although leaves open the question of the territory around the temple.  Newspapers initially reported that both countries were satisfied with the ruling; now, it seems that Thailand wants to “negotiate further on the issue with Cambodia.”

Although not of the global importance as the situation in Syria or Iran, this case can be counted as a provisional win for the ICJ and for the processes of international dispute resolution.  As we’ve discussed in the past (here) the origins of the dispute can be traced to Thai domestic politics more than anything else.  The ICJ offered a neutral forum where the parties could outsource the dispute, give everyone involved some breathing room, and allow for the political situation in Thailand to normalize.  It remains to be seen whether nationalist forces within Thailand will accept the ruling, or insist that the government repudiate it.

Round 1 at the International Court of Justice

By way of background, the ICJ first took up the case upon a 1959 application by Cambodia after Thai forces occupied the temple area in 1954.  In that earlier opinion, issued in June 1962, the Court had declared that

the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia

notwithstanding that the temple, being on an escarpment, is geographically more accessible from Thailand and on the Thai side of a natural watershed that otherwise demarcates the border between the two countries.  Interestingly, the Court did not consider Cambodia’s cultural claims to the 11th century temple, which was built by the same Khmer royalty who are responsible for the spectacular Angkor Wat temple complexes.

The ruling was premised in part on interpretations of French maps, drawn up in 1907 by the Franco-Siamese Mixed Commission, which placed the territory in Cambodia.  Thailand had helped generate these maps, and subsequently used them for its own purposes until its 1954 occupation of the area.  Because Thailand had originally relied on the 1907 maps, suggesting an acceptance of their contents, international lawyers normally cite the ICJ’s 1962 judgment for the principle of estoppel, which the court identified as a general principle of law as contemplated by Article 38(1)(c) of its statute.

UNESCO Enters the Fray

Preah Vihear TempleThailand withdrew from the temple complex following the 1962 judgment.  Cambodia generally enjoyed uncontested sovereignty over the temple until recently.  In 2007, Cambodia successfully requested that UNESCO list Preah Vihear as a World Heritage Site, one of two in Cambodia.  The map Cambodia provided to UNESCO included part of the promontory on the Cambodian side of the border.  Nationalist political parties in Thailand protested the move, leading to Thailand’s withdrawal from both the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage and the World Heritage Committee.  These protests were part of the unrest that led to the 2008 Thai political crisis.  At the same time, Thai and Cambodian forces clashed along the borders, displacing thousands of civilians and requiring the temple to be closed to tourism.  In February 2011, Cambodia brought the conflict to the attention of the U.N. Security Council, which called for a permanent ceasefire to be established between the two parties and expressed its support for the efforts of the Association of Southeast Asian Nations (ASEAN) to find a solution.

Round 2 at the International Court of Justice

In April 2011, Cambodia requested that the ICJ, pursuant to Article 60 of its statute, interpret its original 1962 judgment.  Thailand advanced the argument that the original ICJ opinion related only to the temple itself (and the immediate vicinity), and not to the entire area surrounding it, where the recent clashes have occurred. Similarly, it argued that the Court did not delineate the entire frontier between the countries, which remains contested.  Cambodia countered that by determining that the temple falls within Cambodian sovereign territory, the ICJ by implication had determined the border between the two countries, at least with regard to the temple vicinity. Thai incursions, it contended, thus are akin to violations of Article 2(4) of the U.N. Charter. On the strength of the original ICJ opinion, Cambodia has argued that Thailand remains under a continuing and general duty – rather than a mere instantaneous duty applicable only in 1962 – to withdraw its troops from the area and to respect the integrity of Cambodian territory.

On July 18, 2011, the International Court of Justice ordered provisional measures in the Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand).  Made pursuant to Article 41 of the ICJ Statute, provisional measures are akin to the issuance of a preliminary injunction in U.S. litigation practice.  The measures were premised on findings that:

  • the rights asserted by Cambodia were at least plausible;
  • the rights from which the request for provisional measures derive from the earlier judgment;
  • a link exists between the alleged rights and the provisional measures sought; and
  • irreparable prejudice could be caused to those rights.

Thus the ICJ ordered, inter alia, that

all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia.

The Court then defined this zone with reference to particular coordinates. In addition, the parties were ordered to continue to cooperate with ASEAN and to allow observers to have access to the provisional demilitarized zone.

Round 3 at the International Court of Justice

The Court unanimously ruled this week on the merits of the dispute.  In keeping with its earlier provision measures, the Court held that the 1962 judgment only addressed a dispute regarding territorial sovereignty over the temple and area on which it is located; it was not delimiting the entire frontier or assigning sovereignty over the entire escarpment or nearby geographic features.  Nor did it indicate where Thai troops should withdraw to; rather, it simply indicated that they should withdraw from the temple area.

It remains to be seen whether nationalist forces within Thailand will accept the ruling, or insist that the government repudiate it.  There are apparently plans afoot to jointly develop the area.  Having been to Cambodia dozens of time, I still have yet to see this architectural and historical marvel, which has been generally off limits to tourists.  Let’s hope these moderate impulses prevail…

 

At Peace Palace, the Women of the ICJ

/ Diane Marie Amann / 1 Comment

Women of the ICJ2
Further to Cymie Payne’s excellent IntLawGrrls post regarding ongoing oral hearings before the International Court of Justice in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (webcasts and transcripts available here; prior post here):

Cymie cites among the “great international litigators” on the case Laurence Boisson de Chazournes (below), a professor of international law at the University of Geneva. Also well worth mentioning, of course, is the work done on this case by the jurists depicted above – the Women of the ICJ. ICJ Judge Xue Hanqin of China stands at left. At right is ICJ Judge Julia Sebutinde of Uganda; next to her, ICJ Judge Joan E. Donoghue of the United States. laurenceBetween Donoghue and Xue is ICJ Judge ad hoc Hilary Charlesworth, an Australian National University international law professor (not to mention an IntLawGrrls contributor). They flank the portrait of the ICJ’s first woman member, Rosalyn Higgins of Great Britain. She began service as an ICJ Judge in 1995– four years after the publications of a milestone article in which Charlesworth et al. decried the absence of women on that bench. Higgins was the ICJ’s President from 2006 until her retirement in 2009.

(With thanks to Don Anton for forwarding the featured group photo. Cross-posted from Diane Marie Amann.)

Whaling at the ICJ – Oral Proceedings in Australia v Japan

/ Cymie Payne / 2 Comments

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.