Japan’s New Optional Clause Declaration at the ICJ: A Pre-Emptive Strike?

On the pitch, the best offense is sometimes a good defense. Alternatively, you can simply decide not to play.

It was reported yesterday that Japan has submitted a new reservation to its declaration recognizing the compulsory jurisdiction of the International Court of Justice (ICJ). The new reservation, which is not yet available on the Court’s website, apparently seeks to exclude disputes relating to living marine resources from the Court’s jurisdiction. According to a fact sheet from Japan’s Ministry of Foreign Affairs, Japan considers that such disputes should instead be heard under the dispute settlement provisions of the 1982 UN Convention on the Law of the Sea.

This is an interesting, if not surprising, development. In March 2014, the ICJ held in Whaling in the Antarctic (Australia v. Japan) that Japan’s authorization of special permits for the killing of whales in connection with the research program known as JARPA II did not comply with Article VIII of the International Convention on the Regulation of Whaling (ICRW). Article VIII, paragraph 1, provides that “any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit”. Whaling that is authorized by special permit under Article VIII is exempt from other restrictions imposed by the ICRW regime, including the moratorium on commercial whaling that has been in place since the 1980s.

In its Judgment of 31 March 2014, the Court found that the killing of whales in connection with JARPA II was not “for purposes of scientific whaling” (para. 227) and ordered Japan to revoke existing permits and to refrain from granting any new permits for JARPA II (para. 245). The judgment did not foreclose the possibility of a new research program that would include the grant of special permits to engage in lethal sampling of whales. However, the test applied to JARPA II by the Court suggests that the design and implementation of any such programme must, from an objective perspective, be “reasonable in relation to achieving its stated objectives” (Judgment, paras. 67, 88).

In light of the ICJ decision, Japan acted promptly to design a new program, and over the course of the past year, the proposal for the New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A) has been reviewed by the International Whaling Commission (IWC), the international organization created by the ICRW. Like JARPA II, NEWREP-A involves the lethal sampling of minke whales, but the annual target sample size has been set at a lower level.

The NEWREP-A proposal states expressly that it has been designed with regard to the reasoning and conclusions of the ICJ in the 2014 judgment. Nonetheless, it has not obtained the blessing of the IWC. The Scientific Committee, a subsidiary body of the IWC composed mainly of scientists from States parties, considered the proposal at its San Diego meeting in June 2015. Its report summarizes a range of views on NEWREP-A and states that it was not possible to develop a consensus view. The Scientific Committee report also summarizes the views of a smaller expert panel, which had met prior to the San Diego meeting. The expert panel had found that “the current proposal did not demonstrate the need for lethal sampling to achieve [its two major] objectives” and had recommended additional steps to be taken before revisiting that assessment. In Annex Q5 to the Scientific Committee’s report, forty-four scientists who participated in the June 2015 meeting reiterated the views of the expert panel and stated unequivocally that the “the need for lethal sampling has not been demonstrated” by the NEWREP-A proposal. Those scientists thus appear to find that NEWREP-A’s design, as currently explained, is not reasonable in relation to achieving its stated objectives. The views of the Scientific Committee and the IWC are non-binding, however, and it appears that NEWREP-A will be launched later this year.

Japan’s move to adjust the conditions of its optional clause declaration raises the question whether NEWREP-A will be challenged before an international court. Setting aside the fact that any such litigation would require a willing applicant state, there are at least two legal questions to consider: (1) when does Japan’s new reservation to its optional clause declaration take effect; and (2) what are the prospects for litigating a dispute about NEWREP-A under the dispute settlement provisions of UNCLOS?

Japan’s 2007 declaration accepting the Court’s compulsory jurisdiction states that it “shall remain in force for a period of five years and thereafter until it may be terminated by a written notice”. It neither specifies that such termination shall have immediate effect upon written notice nor addresses the prospect of an amendment to, rather than termination of, the optional clause declaration. This leaves some ambiguity about the effective date of Japan’s new declaration under the optional clause. In the Nicaragua case, the United States infamously withdrew its acceptance of the Court’s compulsory jurisdiction just three days before Nicaragua’s application was filed. However, the terms of the US declaration had provided specifically that its termination would take effect only following a notice period of six months, and the Court thus held that the United States had “assumed an inescapable obligation”. More recent optional clause declarations have preserved the maximum flexibility of the declarant state by providing expressly that termination or amendment of the declaration shall take place with immediate effect. For example, Greece submitted an optional clause declaration in January 2015 by which it “reserves the right at any time, by means of a notification addressed to the Secretary-General of the United Nations, and with effect as from the moment of such notification, to add to, amend or withdraw this Declaration.” This formula, which appears in several optional clause declarations, avoids the ambiguity that one might find in Japan’s 2007 declaration. There is at least a plausible argument that the new restriction imposed by Japan on its acceptance of the Court’s compulsory jurisdiction will take effect only following a “reasonable” period of time. This might provide a brief period in which to initiate a new ICJ case concerning the authorization of special permits for NEWREP-A.

The second question is whether a dispute concerning NEWREP-A could realistically be litigated under UNCLOS dispute settlement procedures. There may be some difficulties with this prospect. For example, the claims to be litigated would need to concern the interpretation or application of a UNCLOS provision (see UNCLOS article 286), not directly whether the grant of special permits for NEWREP-A accords with Article VIII of the ICRW. An applicant state could perhaps claim that by authorizing special permits for NEWREP-A, Japan has failed to cooperate in the conservation of marine mammals on the high seas, and in the case of whales, to work “through the appropriate international organizations for their conservation, management and study” (see UNCLOS articles 65 and 120). However, whether Japan has met a duty of cooperation is a distinct question from whether special permits have been issued “for purposes of scientific research” in accordance with Article VIII. A state seeking to challenge NEWREP-A might also invoke UNCLOS article 257, which provides that all states “have the right, in conformity with this Convention, to conduct marine scientific research in the water column beyond the limits of the exclusive economic zone”. The claim could potentially focus on whether Japan’s authorization of special permits for NEWREP-A is “in conformity” with other UNCLOS provisions. In brief, it may require a considerable degree of legal creativity to articulate a substantive claim under UNCLOS that addresses squarely the lawfulness of granting special permits for the new programme.

In sum, Japan, which has been a party to UNCLOS since 1996, has not made a choice of forum declaration under article 287 of the treaty. As a result, Japan is deemed to have accepted arbitration under Annex VII. In light of Japan’s new optional clause declaration, it may be more likely that any future legal challenge to special permit whaling by Japan will find its way to an Annex VII panel, and not to the ICJ. If so, a key question will be whether an arbitral panel will follow the ICJ’s lead and apply an objective test to determine whether the programme’s objectives justify its design and implementation, including through the consideration of expert scientific evidence.