* This article is written in Japanese on July 1, 2013.
- International Court of Justice | UN WEB TV
- Pending Cases | International Court of Justice
- Presentation materials of Japan and Australia (captured by me) | my twitpic
Public hearings on whaling in the Antarctic (AUS& NZ v. Japan) were held beginning Wednesday, 26 June at the ICJ (International Court of Justice) in Hague.
This month is the so-called "season of the whale" when the IWC (International Whaling Committee) annual meeting is held at a resort area of some country usually, and where the people who talk incoherently, saying such things as "the Anglo-Saxons are outrageous!" increase temporarily on the streets in Japan.
The ICJ case has given added zest to their drinking, not just the the IWC biennial meeting this year.
Even in the first case at ICJ for Japan different from IWC meeting with mannerism for the nation, it is no wonder that the cheer-leading party for whaling and the Japanese media may become more fervent than usual.
However, the real reaction quite lacks a building‐up of tension.
This is the bogging trial between Japan and Australia. The quarrel between two states. And, it is the debut match for Japan.
This can has none of the entertainment value of an entertainer's divorce or a match like as professional wrestling between SSCS (Sea Shepherd) and Japanese whaling vessels which transmit only one-sided video information by both parties.
This case is worthy of notice, isn't it?
Not all discussions under the IWC have been opened to the public. Though instead of the Japanese mass media being faithful to announcements from "Imperial-Headquarters", a poor NGO went to attend and send back as much information as possible, but it had been opened hardly what had spoken among stakeholders concretely such as the backside of negotiations on the proposal by Alvaro de Soto, the IWC consultant.
However, in the ICJ case, all the details of the arguments have been broadcast all over the world on UN Web TV. Everything is clarified without disguise.
Even if the Whaling Circle (The Institute of Cetacean Research, Kyodo Senpaku Co., Ltd. and Japanese Fisheries Agency, lobbyist-politician and the mass media are added in a broad sense) invented a false rumor to obscure the truth, nobody can prevent the public from acquiring information actively and independently. However, language barriers become an obstacle for Japanese citizens.
Well, it was in 2010 that Australia decided to institute proceedings at the ICJ.
Before then, since this lawsuit was planned, there have been concerns by other anti-whaling countries including the U.S.A., and some moderate NGOs.
New Zealand which joined the lawsuit to back up Australia was also critical at the beginning.
Cons were deep-rooted also between the internal media and cabinet members like Andrew Darby, Australian journalists pointed out.
I also have to point out the problem over again and again.
It has been considered that this is a kind of gambling on elements that work against the Australia side and may cause a irrevocable result. It is like an outside scuffle, and it may lead to fatal damage after return to the ring.
But then Japan repeatedly made mistakes, enough to make up for the disadvantage of Australia.
One, the scientific nature of Japanese research whaling is as slovenly as ever.
Another, they received money from the budget for "Earthquake Recovery" and the subsidy for "Profitable Fishery". On these two points, I have written in past articles.
In this article, I will explain about the fatal defect of Japan's tactic against ICJ / Australia.
In the past articles, I gave three major points of this lawsuit: "Is the lethal research necessary?", "Is the number of killing whale appropriate? ", and "May Japan sell whale meat?".
Since the point at issue which Australia appealed was the non-science and illegality of Japanese research whaling, the public and the media were also thought that this is naturally an important point.
However, objections Japanese do not focus upon the denial of non-science. It was on purpose of course, the point has shifted.
On the ICJ website, the second link above, the materials from the three countries are published.
The claim of the Japan side is summarized into the following three points.
1) The case is outside of the ICJ's jurisdiction
2) To put stress on justification by the ICRW article 8
3) The scientific nature of Japanese research whaling
Citizens who are interested in environmental or animal issues and the mass media in internal and external pay attention to the argument about 3) mainly.
But 1) and 2) are as important as 3) or more important in this trial.
"Formidability of Japan beyond an acceptable degree" is highlighted there.
Number 2) is without judgment of 3) right or wrong, 1) is without judgment of 2) and 3) right or wrong, they contain information that justify the position of Japan. In short, this is a three-tier claim.
In this first ICJ case for Japan, it is reflected there what kind of tactics Foreign Affairs bureaucrats have planned. It is a level of "stratagem" rather than strategy.
However, this elaborate tactic, with the analysis of Australia's material, has a serious flaw that Japan might trip up to determine Japan’s defeat.
I anticipate a scenario in which Japan will fall for its own trick and come to ruin. That possibility for Japan in this ICJ case about research whaling is high. In addition, please note that this view is based on my individual verification and different from what Australia says.
At first, I will explain the flow of the ICJ suit briefly.
ICJ is the judicial organ of the United Nations.
The sides to sue and to be sued are nations.
It comes to trial only when both sides, plaintiff and defendant, have agreed. Although it is unavoidable cause of its nature, this could be said as a limitation of the ICJ.
However, the country giving obligatory jurisdiction (optional article) acceptance declaration have to file a countersuit when it was sued by other countries.
Fairness is a fundamental principle of the ICJ. It is a set free and binding. If you want to add a condition, you must admit the same conditions to the other side. That is a trial in the ICJ.
Below the third link, the website of the United Nations, the trust declaration of each country is shown. Japan, Australia, and New Zealand are trust states.
- Statute of the Court | ICJ
- the Regulation of ICJ | UN Information Center Japan (by Japanese)
- Declarations recognizing as compulsory the jurisdiction of the International Court of Justice under Article 36, paragraph 2, of the Statute of the Court | UN TREATY COLLECTION
http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=I-4&chapter=1&lang=en (broken link)
- the Rule of ICJ | UN Information Center Japan (by Japanese)
Therefore, Australia sued Japan which has of a duty of countersue at the ICJ.
However, Japan began a terrible claim in the countersuit material. The applicable part is Chapter 1 of the countersuit material. Japan asked captious questions to Australia persistently over 31 pages.
By the way, in the conflict to the CBD and CITES, Japan passed entirely and escaped. In such places, it is shown around the world not only ICJ judges how low is Japan’s awareness of environment and wildlife protection.
Regarding this matter, Australia explained carefully about Japan's "word game" in the oral proceeding on June 28.
Beginning of Chapter 1 (p 23), Japan suddenly argued that it is outside the jurisdiction of the ICJ.
When a state is appealed by another state at ICJ, there are three avenues to be taken: 1) to ignore, 2) wait a minute!, or 3) fight! It cannot choose 1) if both countries have submitted obligatory jurisdiction trust declarations. Otherwise, it is possible to file a significance to acceptance validity. This is preliminary objection which is deliberate at ICJ before entering the procedure.
Japan did not do this. Namely, it chose # 3), and brought on the quarrel. However, when the lid was opened, Japan said "Wait a minute!" after all. What does that mean?
Japan advocated a precedent.
The case was the dispute between the Republic of Macedonia V.S. Greece, about the name of Macedonia.
Since Greece said "I would not allow NATO membership if you do not change your country name."
The reason given was a confusion of name with it name of place, Macedonia was angry and sued Greece at the ICJ.
Greece answered that "Since it is a problem of a name, and a problem of NATO, so it is outside the jurisdiction of ICJ" in its counter suit memo not by preliminary objection.
It was an unprecedented problem, naming of nation, after all, and besides, the ICJ decided: "The article of the preliminary defenses had better not to interpret by a hard and fast rule and to be applied more flexibly." That means; "I will make allowances."
By the way, the head Judge of this case was Mr. Owada. Surely he must not have provided the material to the government...
Well, the judgment was a Greek defeat by 15to 0. In other words, it is the defeat of the side which complained "It is outside ICJ jurisdiction."
Perhaps the careless mistake by Greece was the first case on sufferance. There is no example of affairs in which NATO is involved in such a form.
It is clear that Japan had ignored the ICJ rule Article 79 on purpose in the case in which their own country was sued.
Preliminary defense is one of a system to avoid unnecessary legal proceedings in ICJ. It helps the United Nations and the countries concerned to not waste time and money.
But, Japan ignored the formal procedure and took exception to appeal jurisdiction outside after it went out of its way to file a countersuit. In the eyes of experts of international law, Japan's way will look awfully strange.
Let's see somewhat in detail about the Japan's claim of jurisdiction outside.
Australia attached requirements for reservation to reserve obligations about the delimitation of maritime zones as a declaration to the ICJ in 2002.
This means that Australia does not accept perfunctorily when an applicable problem is submitted to a trial of ICJ.
When it appeals against the same problem from itself, another nation does not have to accept, of course.
Australia left this pending for "certain circumstances".
It would be self-explanatory.
Japan keenly found the portion which can be called a weak point for Australia, and investigated it: "Because JARPA 2 hits the target cases pending, it is outside the jurisdiction of the ICJ, and Australia does not entitled to sue Japan."
Japan spent a lot of space explaining "exploitation" in Australia’s declaration; "JARPA 2 is science, but it is very special science which corresponds to exploitation."
However, the interpretation of Japan has been skipping the context considerably. The jurisdiction means that "The state doesn't need to accept it if it doesn't want to accept it" and not "It mustn't accept." It may enter an appearance with justice.
It is "the right to escape from an inconvenient lawsuit (the reservation to the duty which does not escape correctly)" and not "the obligation not to accept the lawsuit (not even to appeal)".
In truth, if Japan's legal interpretation is correct, then Japan gained in regards to the ICJ - "There is no plaintiff eligibility in Australia" - by submitting a preliminary objection.
It was the most reasonable (and economical financially!) coping advantage for Japan.
Furthermore, it was the defeat pattern for Australia which other countries, NGOs, and I pointed out about the ICJ lawsuit; the only ICJ option was merely lost, and the scientific nature of Japanese research whaling would remain in an unquestioned state.
However, Japan entered an appearance anyway. After entering a countersuit, Japan said shamelessly that; "there was no right to appeal for Australia; in fact, there was no obligation for Japan to respond, and there was no necessity for the opening of a court."
Japan really flouts Australia, New Zealand, and ICJ.
Why did Japan waste a countersuit as any one fall to thinking without taking the easiest step which has a high possibility of winning and set the burden on nation lightly?
Nevertheless, why doesn't Japan try to fight fair only on the scientific nature of its research whaling and adhere to jurisdiction interminably?
Actually, the reason that Japan raised the ICJ jurisdiction issue and sought prior deliberation in the proceedings is as clear as day.
It is a delaying action: "shortening of the deliberation period for checking scientific nature of research whaling".
That's why Japan repeats the same hand tediously with oral proceedings.
So why does Japan engage in a disgusting delaying action? It's plain enough.
It is because a win cannot be seen only with scientific evidence. Japan does not have confidence.
Especially terrible is Chapter 1, Section 2 of the counter material (p33, 34); "Australia says Japanese research whaling is commercial whaling. So, Australia should not appeal Japan’s whaling activities to the ICJ since it falls under "exploitation." This is nothing but a word game for delaying action. Of course, Australia did not need to appeal to the ICJ, if it is commercial whaling since that would be stopped immediately as a violation of the IWC resolution.
Everyone feels that "Does this country really have a posture in deference to law?" and has a strong doubt if some country says calmly; "You'll not have to sue me if I violated a treaty."
From Chapter 1, Section 3 of the counter material (p38), Japan attacked Australia's circumstance which is unrelated directly to this dispute and appealed the difference between two countries. Then, Japan returns to the conclusion; "Even if JARPA 2 is related to 'the circumstances', Australia doesn't have the qualification to appeal." Japan is using word games from beginning to end.
It is obvious that Japan intends to redefine research whaling which would have a lower scientific nature and higher commercial purpose, using word games involving "exploitation" or "or", the transition of terms to "special permit whaling" from "scientific whaling", as characterized in Article 8, and so on in Japan's counter memorial.
It can be said that three points in Japan's claim has the intent to accept special permit whaling and to not make it clear whether something is right or wrong, as in 1) to delay for time, as 2) and 3) not to give space to talk about the actual state.
If the claim of out of jurisdiction is fair, Japan might draw a conclusion clearly with the preliminary defense from the first and disregard Australia.
If Japan can win enough on scientific nature, it should fight only for that. It is only to appeal to judges that; "Japan doesn't intend to face a lawsuit seriously." to bewilder the other states and ICJ , saying that "Japan does not have to contest the suit."
Of course, it is equal to prove how the scientific nature of Japanese research whaling was untrusted.
But that's not all. A series of Japan's trial tactics which were indecisiveness halfway while looks very carefully and is seen overbearing while assume the defensive are making diplomacy of and the character of the nation to all over the world.
In this ICJ trial over research whaling, Japan's stance has been exposed to the eyes of people in the world; picking a fight and taking advantage of the weakness of Australia, bringing a useless dispute without considering the place of the ICJ, without asking what is "science", "conservation", "life" and "fairness", and actively trying to find a loop-hole in the laws for self-justification. And all of this through the webcast being broadcast by the UN.
Japan appeal itself to the world as a nation which is egoistic and careless about its appearance. Japan has made itself ridiculous with abandon. As the Japanese, there is no such intolerable thing like this.
If Japan was right, it wasn't necessary to compete against a friendly nation.
If Japan was right, it should not engage in unbecoming behavior, using such underhanded measures.
Nevertheless, why has Japan done it?
One interpretation is that Japan is simply not a reasonable country.
If Japan wants to gain a conclusion” outside the jurisdiction” at the ICJ, it will be ending with its preliminary objection. Considering the costs and benefits, it is just the best selection. All the other work would be wasted.
Such tactics with little rationality, fighting for a jurisdiction decision, after contesting a suit are not appropriate to be planned by the first-class elite bureaucrats of Kasumigaseki.
In short, it is for face-saving unrelated to an actual profit.
They think; "The world would think it regrettable that Japan escaped. Since the issue concerns dignity, it is disagreeable absolutely. Japan wishes to reduce Australia to a non-entity. It wishes to twist down the Anglo-Saxons, too."
For such a worthless reason, Japan expressly took on a dispute with a friendly nation which it should have been able to evade.
Japan sent out their ace from the Foreign Affairs Ministry, the chief negotiator in the TPP negotiations, as the agent and recruited specialists of international law overseas with payments of high performance fees for intercepting Australia.
This wasteful use of taxpayer money is terribly irrational.
However, this was never a thought by those who require the lobbyist-politicians of Nagata-cho.
Anyway, Japan felt uneasy with only scientific nature argument. Therefore, even if it was seen a nasty technique, this three-way tactic plan was taken with what is necessary to win.
Probably, it has also had such a light view on how much the UN broadcasts the proceedings live, most Japanese do not view all of such videos on esoteric legal wrangles in English, with heavy documents. The domestic public opinion can be derived by the mass media.
However, this case has exposed the tactics of Japan: thought to provide a way out, thought to disrespect international law, and thought to exploit the loophole in the law, showing a lack of consideration for fairness and showing an attitude to taunt the ICJ and the other states.
The judges of ICJ should be able to see through that.
It is certain that Japan will lose the case, though Japan should lose for the sake of all wildlife including whales and for the natural environment of the Antarctic...