Within only a few days of being elected to the United Nations Security Council, it has come to light that Japan has formally rejected the ICJ with respect to wildlife and natural resources, effectively placing itself outside of the same rules that bound most of the United Nations parties.
The Sydney Morning Herald is reporting that ‘the Japanese government has told United Nations Secretary-General Ban Ki-Moon in a special declaration that it will take a sweeping exception to the court’s jurisdiction.
It says the court’s jurisdiction “does not apply to … any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea”.’
One must ask the question of whether the UN members that voted for Japan were told of Japan’s proposed actions? Or did Japan wait to ensure that it could not be challenged?
When were the members of the UN actually informed of this decision, as opposed to when the UN secretariat were informed?, and how should the UN general Assembly, that appoints the ICJ’s judges, now react?
If the General Assembly members were not informed, then Japan is guilty of grossly misleading other nations on the role it wishes to play in the international community.
Unable to persuade the International Whaling Commission (IWC) that it could comply with the 2014 ICJ judgement; unable to leverage its supporters in the IWC scientific committee to endorse its new so-called ‘scientific’ whaling programme; failing to convice the world that it’s proposed whaling was not commercial and therefore not in contravention of the ICJ, – what does Japan do? It simply removes itself from the jurisdiction of the ICJ.
Such arrogance from Japan should weigh heavily on the United States and any nation that may have been contemplating compromise with Japan on its whaling.
In a Japanese Ministry of Fisheries website statement, Japan appears to be arguing that any future dispute should be dealt with through the UNCLOS mediation and dispute settlement process. Japan states “it is more appropriate, as long as there is no special agreement, to apply dispute settlement procedure under the UNCLOS that establishes provisions regarding living resources of the sea as well as the involvement of experts from the scientific or technical perspective when an international dispute arises with respect to research on, or conservation, management or exploitation of, living resources of the sea.”
Part XV of UNCLOS deals with the settlement of disputes concerning the interpretation or application of the Convention. When parties are unable to settle a dispute by negotiation, conciliation or other peaceful means, the Convention provides for compulsory dispute settlement. Article 287 sets out a choice of compulsory dispute settlement procedures, (i) International Tribunal for the Laww of the Sea (ITLOS); (ii) the International Court of Justce (ICJ); (c) an Annex VII arbitral tribunal or (d) an Annex VIII special arbitral tribunal for specific categories of disputes. However, parties have to agree to the actual method of arbitration, and if they do not, results in an Annex VII arbitral tribunal which consists of five members and is free to determine its own procedure, unless the parties agree otherwise. Annex VII arbitration thus offers greater flexibility than dispute settlement bodies with fixed rules of procedure such as the ICJ.
Japan obviously believes it will be better able to influence any such process under UNCLOS Annex VII arbitration when it could not affect the judicial process at the ICJ.
For an insightful analysis of Japan’s move, you should read Michael A. Becker’s analysis at the Environmental Jpurnal of International Law.
For me, Japan has clearly indicated that it does not intend to be further bound by such international agreements that go against it and will seek to dilute any chance of losing again, – and the world’s nations should now consider carefully what such a move means for any other agreement that they enter into with Japan, and not just with respect to whaling.
Once again Japan has taken itself outside the global community of conscience.