Yesterday the International Court of Justice ruled that a Japanese government-sponsored program for hunting certain species of whales in the Antarctic violates the International Convention for the Regulation of Whaling. Japan had argued that the program was lawful under Article III of the Convention, which authorizes states-parties to “kill, take and treat whales for purposes of scientific research,” but the Court rejected that argument and found that the program’s design and implementation lacked a reasonable relationship to scientific inquiry. As remedies, the Court ordered declaratory relief and enjoined Japan “to revoke any extant authorization, permit or license, to kill, take or treat whales” in relation to the unlawful program and “refrain from granting any further permits . . . in pursuance of that program.”
Some commentators have predicted that Japan will flout the Court’s judgment, given a purported Japanese policy in favor of unfettered access to marine resources on the high seas. But I’m not so sure, for at least one reason. Namely, Japan has a strong interest in presenting itself to the international community as a state that follows the international rule of law. This is particularly true today, in light of the ongoing dispute over the Senkaku / Diaoyu Islands. By signaling a lack of regard for international law, a decision to disobey the ICJ would make it more difficult for Tokyo to credibly invoke principles of occupation and acquisitive prescription in justifying Japanese sovereignty over the Islands. Put differently, disregarding the judgment would play into China’s hands by allowing Beijing to depict Japan as a nation that does not care about international law, including by extension the law underlying the territorial dispute.