Donald R. Rothwell, The Whaling Case: Australian Perspectives, Kokusai Mondai (International Affairs), No.636,
November 2014

THE WHALING CASE: AUSTRALIAN PERSPECTIVES

Donald R. Rothwell
Professor of International Law, ANU College of Law, Australian National
University

INTRODUCTION
Australia commenced proceedings in the International Court of Justice (ICJ) in May 2010 after a longrunning period of diplomatic activity at a bilateral and multilateral level to stop Japan’s whaling
programs in the Southern Ocean. First with JARPA (1987-2005), and then JARPA II (2005-2014),
successive Australian governments sought to raise their concerns over Japan’s whaling programs
within the International Whaling Commission (IWC), with other conservation-minded States, anddirectly with Japan (Anton 2009). Only after having had these multiple diplomatic efforts rebuffed,
did Australia finally commence ICJ proceedings in 2010. Litigation in the ICJ was commenced
against a backdrop of Australia and Japan having a very strong post-war bilateral relationship,
founded on trade and increasing security ties (Klein 2009: 143).
The court’s judgment on 31 March 2014 1 was the culmination of Australia’s long running campaign
to bring about an end to Japanese whaling in the Southern Ocean and represented the conclusion oflegal argument that had been in development since 2005. The decision was a vindication for the nongovernment organisation (NGO) community in Australia and internationally which had been fiercely
opposed to both JARPA and JARPA II, and also for the decision of the Labor government of Prime
Minister Kevin Rudd to implement its 2007 pre-election policies opposing JARPA II and to explore
the commencement of international litigation against Japan if ongoing diplomatic efforts failed (Klein2009). This essay briefly reviews the background to the Whaling case (see generally Rothwell 2013),
considers Australia’s objectives in the proceedings before the ICJ, and reflects upon the outcome forAustralia.

1

Whaling in the Antarctic (Australia v. Japan; New Zealand Intervening) Judgment of 31 March 2014[2014] ICJ Reports.

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Donald R. Rothwell, The Whaling Case: Australian Perspectives, Kokusai Mondai (International Affairs), No.636,
November 2014
BACKGROUND TO THE WHALING CASE
The development of the Whaling case for Australia has its foundation in the 1978 decision of the thenLiberal/National Coalition government of Prime Minister Malcolm Fraser to ban all whaling inAustralian waters (Pash 2008). This set in train a process in which Australia joined an international
campaign alongside other conservation minded countries to halt commercial whaling. This process
focussed on the IWC, and pro-conservation members seeking to adjust the Schedule of the 1946
International Convention for the Regulation of Whaling (ICRW) to reflect conservation objectives. 2
The conduct of Article VIII special permit whaling following the introduction of the moratorium in
1986-1987 was the subject of a number of IWC Resolutions in 1986,3 19874 and during the 1990s inwhich the Commission continually expressed its concern about the issuing by Contracting
Governments of special permits. Australia was often at the forefront of that debate, highly critical ofJapan’s conduct of JARPA (Darby 2007: 230-246). In 20015 and 20036 the IWC called upon Japan tohalt the lethal take of minke whales and revise its research program to focus on non-lethal means ofresearch. As JARPA was conducted in the Southern Ocean, issues were also raised within the IWC as
to its consistency with the provisions of the IWC-endorsed Southern Ocean Sanctuary within which
all commercial whaling activity is prohibited. 7
When Japan announced in 2005 that it was concluding JARPA and expanding its Special Permit
program with JARPA II from the 2005-2006 season the International Fund for Animal Welfare(IFAW) promoted the development of an international legal strategy that pro-conservation
governments could pursue through international courts. It was a strategy that had both a global reach,but increasingly began to focus on Australia and New Zealand. Between 2006-2009 IFAW sponsoredfour international legal panels to consider various aspects of the development of legal argument andlegal proceedings against Japan regarding the conduct of JARPA II. They were as follows:

2

The Schedule is attached to the ICRW and contains technical provisions that relate to the manner inwhich whaling can be conducted, individual provisions regarding certain species, and provisions for
closed seasons. Importantly for the present discussion, the ICRW is subject to simple modification via
a three-quarter majority of ICRW members states present at an IWC Annual Meeting.
3

IWC Resolution 1986-1 ‘Resolution on Special Permits for Scientific Whaling’.

4

IWC Resolution 1987-1 ‘Resolution on Scientific Research Programs’.

5

IWC Resolution 2001-7 ‘Resolution on Southern Hemisphere Minke Whales’.

6

IWC Resolution 2003-3 ‘Resolution on Southern Hemisphere Minke Whales and Special Permit
Whaling’.
7

IWC Resolution 1996-7 ‘Resolution on Special Permit Catches by Japan’; IWC Resolution 1998-4‘Resolution on Whaling under Special Permit’.

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Donald R. Rothwell, The Whaling Case: Australian Perspectives, Kokusai Mondai (International Affairs), No.636,
November 2014
 Paris Panel of May 2006 resulting in the Report of the International Panel of Independent
Legal Experts On: Special Permit (“Scientific”) Whaling under International Law(International Fund for Animal Welfare 2006a);
 Sydney Panel of December 2006 resulting in a report titled Japan’s Special Permit(“Scientific”) Whaling under International Law (International Fund for Animal Welfare
2006b);
 London Panel of November 2007 resulting in a report titled The Taking of Sei and Humpback
Whales by Japan: Legal Issues Arising under the Convention of International Trade inEndangered Species of Wild Fauna and Flora (CITES) (International Fund for Animal
Welfare 2007); and Canberra Panel of January 2009 resulting in a report titled Japan’s ‘Scientific’ Whaling
Program and the Antarctic Treaty System (International Fund for Animal Welfare 2009).
In light of their close alignment with the Australian application before the ICJ and legal argument
advanced by Australia, the work of the Paris and Sydney Panels will now be briefly assessed.
The Paris Panel comprised a group of eminent international legal experts 8 who were asked by IFAW
to assess:a) what conditions a state party to the ICRW entitled to carry out scientific whaling shouldhave regard to under Article VIII of the Convention and other international instruments,b) whether scientific whaling being carried out by some members of the IWC was consistent
with the ICRW, andc) the consequences that would follow if the IWC were to adopt a resolution indicating thatscientific whaling conducted by a member of the IWC was lawful.
The Panel concluded that the whaling conducted by some members of the IWC did not meet therequirements of paragraph 30 of the Schedule and therefore did not meet the exemption provided forin Article VIII of the ICRW and as such was unlawful (International Fund for Animal Welfare 2006a[2]). It was considered that there was “strong evidence” that the scientific whaling conducted by somemembers of the IWC was in violation of the moratorium on commercial whaling (International Fundfor Animal Welfare 2006a [2]). The Panel also assessed the relevance of the 1982 United Nations
Convention on the Law of the Sea (LOSC), 9 and identified 11 articles of that instrument wherescientific whaling raised “serious questions of compliance” (International Fund for Animal Welfare
8

The members of the Paris Panel were Professor Laurence Boisson De Chazournes, Professor
Pierre-Marie Dupuy, Professor Donald R. Rothwell, Professor Philippe Sands (Coordinator),
Ambassador Alberto Székely (Coordinator), William H. Taft IV, and Kate Cook (Rapporteur).
9

United Nations Convention on the Law of the Sea, United Nations Treaty Series 1833: 397.

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Donald R. Rothwell, The Whaling Case: Australian Perspectives, Kokusai Mondai (International Affairs), No.636,
November 2014
2006a [2]). Likewise, similar serious questions were raised with respect to compliance with theConvention on Biological Diversity, 10 Convention on International Trade in Endangered Species ofWild Fauna and Flora (CITES), 11 and 1980 Convention on the Conservation of Antarctic Marine
Living Resources (International Fund for Animal Welfare 2006a [2]). 12 In light of those findings it
was considered that the conduct of scientific whaling by some members of the ICRW, including Japan,
was not consistent with the ICRW. Particular reference was made to JARPA II (International Fund forAnimal Welfare 2006a [2]). Note was made of the failure by Japan to demonstrate to the IWC
Scientific Committee that its special permit whaling had been authorised in exceptional circumstances.
Finally, the Paris Panel concluded that a Resolution adopted by the IWC determining that such
scientific whaling was lawful would not be capable of altering the legal obligations arising under the
ICRW in relation to the prohibition of commercial whaling (International Fund for Animal Welfare
2006a [2]).
The Paris Panel Report was initially distributed by IFAW to pro-conservation members of the IWC,
and advocacy work was undertaken on the report during the 2006 IWC meeting in St. Kitts and Nevis.
The Report was subsequently made available to the public, a copy was posted on the IFAW website,and hard copies were printed for distribution. It provided a framework for the legal analysis
undertaken by the later Legal Panels and laid the groundwork in identifying the key substantive legal
issues that would be relied upon in seeking to contest the legality of Japan’s conduct of JARPA II.
The Sydney Panel comprised a group of Australia international law experts, 13 and was asked by
IFAW to consider the legality of Japanese whaling in Antarctica and the options available to Australia
and New Zealand to pursue international legal action against the Government of Japan in relation to
its Antarctic whaling activities under JARPA II. The Panel’s report was concluded in December 2006,
and delivered to the Australian and New Zealand Governments in January 2007. The Panel noted thatthe extension of JARPA II to humpback whales was especially significant to Australia given theannual migration of that species along the Australian coastline. The potential economic impact of thekilling of humpback whales was also noted given the growth of whale-watching as a tourist andrecreational activity.

10

Convention on Biological Diversity, United Nations Treaty Series 1760: 79.

11

Convention on International Trade on Endangered Species of Wild Fauna and Flora, United
Nations Treaty Series 993: 243.
12

Convention on the Conservation of Antarctic Marine Living Resources, United Nations Treaty
Series 1329: 47; see International Fund for Animal Welfare (12 May 2006) [2].
13

The members of the Sydney Panel were Dr Natalie Klein, Associate Professor Greg Rose,
Professor Donald R. Rothwell (Chair), Professor Ivan Shearer, Dr Tim Stephens (Rapporteur), and Dr
Christopher Ward.

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November 2014
In its Report, the Panel found that Australia and New Zealand had a number of international legal
options open to them to challenge the ongoing conduct by Japan of JARPA II. The legal options
canvassed extended from the sponsoring of meetings of scientific, legal and policy experts to review
alternative options for the resolution of the dispute within the IWC, to potential international litigation
before the ICJ. The Panel also found that it was possible to raise concerns about Japan’s scientificwhaling program within other international forums, including the Antarctic Treaty System. The
principal conclusions of the Panel included:
1. That Australia and New Zealand consider sponsoring meetings of legal, scientific and policy
experts to discuss options to resolve the dispute with Japan and the future of whale
conservation within the International Whaling Commission;
2. That Australia and New Zealand consider requesting Japan to agree to an ad hoc arbitration of
the dispute on mutually agreeable terms;
3. That Australia and New Zealand seek to raise their concerns over the conduct of JARPA II
before the Antarctic Treaty parties, including at the Commission for the Conservation of
Antarctic Marine Living Resources ;4. That Japan’s actions under JARPA II may be contrary to the requirement to undertake anenvironmental impact assessment under the provisions of the Convention on Biological
Diversity;
5. That Japan’s authorisation of JARPA II may lead to breaches of CITES;
6. That Australia and New Zealand consider commencing a legal claim before the International
Tribunal for the Law of the Sea (ITLOS) seeking compulsory settlement of a dispute under
the LOSC;
7. That Australia and New Zealand also consider commencing a legal claim before the ICJ
arguing that Japan’s conduct of JARPA II was contrary to the ICRW.
In reaching these conclusions, the Sydney Panel noted that ultimately it was a matter for theAustralian and New Zealand governments to weigh up which were the most suitable for pursuing
action against Japan in relation to JARPA II. However, the Panel did particularly note that Japanproposed under JARPA II to begin the take of humpback whales as from the 2007/8 season and thatwith an apparent shift taking place within the IWC as to the merits of maintaining a moratorium oncommercial whaling that Australia and New Zealand could face a diminishing period in which a
successful international claim could be commenced and argued.
Australia’s decision on 31 May 2010 to commence proceedings in the ICJ would appear to partly
reflect the influence of IFAW in the development of litigation strategies for Australia and other likeminded countries in contesting the legality of JAPRA II before an international court or tribunal. At
this point in time the precise impact of IFAW’s advocacy on these matters is not possible to identify,

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Donald R. Rothwell, The Whaling Case: Australian Perspectives, Kokusai Mondai (International Affairs), No.636,
November 2014
and will most likely only be revealed once relevant Australian government Ministers who wereinvolved in the decision-making processes associated with the decision to commence the proceedings
against Japan write their biographies, or when Australian government archives make available
relevant government documents. Nevertheless, on the basis of the narrative above, the connection
between the international legal options considered in the Paris and Sydney Panel reports, and the factthat three members of the Paris Panel were also members of the legal team that represented Australia
in the ICJ against Japan,14 it can be assumed that IFAW’s work in developing and promoting the legal
case against Japan not only influenced the Australian government to commence proceedings against
Japan but also found its way into Australia’s actual legal argument.

AUSTRALIA’S OBJECTIVES BEFORE THE ICJ
Australia’s principal objective before the ICJ was to seek orders from the court that Japan’s conduct
of JARPAII was inconsistent with the ICRW and accordingly contrary to international law. If
successful, Australia would have been of the view that any such judgment would have brought about
an end to Japanese whaling in the Southern Ocean. However, Australia’s objectives before the ICJ
needed to be framed in terms of a request consistent with appropriate remedies available underinternational law and within the ambit of the jurisdiction of the court. Australia’s application before
the ICJ therefore sought that the court “adjudge and declare that Japan is in breach of its international
obligations in implementing the JARPA II program in the Southern Ocean” and additionally thatJapan be ordered to:a) Cease implementation of JARPA II;b) Revoke any authorisations, permits or licences allowing the activities which are the subject of
this application to be undertaken; andc) Provide assurances and guarantees that it will not take any further action under the JARPA II
or any similar program until such program has been brought into conformity with its
obligations under international law. 15
Australia’s objectives were therefore relatively limited and focussed upon legal argument and relief
framed around an interpretation of JARPA II, but were aimed at ensuring that if the ICJ accepted its
arguments JARPA II would not be permitted to continue in its existing form or in any related form
until such time as Japan’s conduct was brought into conformity with international law. This was
substantially then an application by Australia in which it sought to ensure that JARPA II was brought
14

Those members of the Paris Panel who were also members of the Australian legal team were
Professor Laurence Boisson De Chazournes, Kate Cook, and Professor Philippe Sands.
15

Whaling in the Antarctic [23].

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Donald R. Rothwell, The Whaling Case: Australian Perspectives, Kokusai Mondai (International Affairs), No.636,
November 2014
to an end, thereby removing the immediate controversy that had developed between the two countries
over the conduct of Japan’s Southern Ocean whaling program. But the Australian application did
implicitly acknowledge that Japan may seek to undertake a future Southern Ocean whaling program,and to that end orders that Australia sought to ensure that “JARPA II or any similar program” be“brought into conformity with its obligations under international law” is significant. As such,
Australia understood when making its application to the ICJ that it had a limited ability to bring about
a complete cessation of Japanese whaling in the Southern Ocean, but that it could seek to ensure thatany future conduct by Japan was in conformity with international law.
In this respect it needs to be recalled that Australia’s 2010 application not only referred to Japan’s
obligations under the ICRW, but also to the potential obligations of Japan under the Convention on
Biological Diversity (CBD), and the Convention on International Trade in Endangered Species ofWild Fauna and Flora (CITES). Ultimately, Australia did not pursue substantive argument before the
ICJ based on the CBD and CITES, and chose to substantively frame its argument around Article VIIIof the ICRW. However, even with the decision to focus the legal argument upon Article VIII,
Australia was well aware that the ICJ was not capable of striking Article VIII out of the ICRW andthe removing that provision entirely from the convention. The result was that even if Australia
succeeded with its application, Article VIII would always remain as a legitimate provision within theconvention. Australia was therefore aware that it would have to deal with that reality and that there
was the potential that if the Australian application succeeded the court would have provided sufficientguidance for Japan to reassess the conduct of JARPA II and seek to develop an alternate whaling
program framed around the court’s judgment and interpretation of the ICRW and Article VIII inparticular.
Finally, it can be observed that Australia did not seek to raise before the court Japan’s conduct of
JARPN II. In principle there was nothing to stop Australia seeking to have made such an application
as the foundation of the Australian case was not that Japan was conducting whaling in waters within
Australian jurisdiction, or adjacent to Australian territory, but that Australia sought to contest Japan’sinterpretation of the ICRW via its conduct issuing Article VIII special permits and that Australia’s
standing to do so before the ICJ was based upon Australia’s position as a party to the ICRW. Australia
could, if it had wished to do so, have expanded its application to challenge both JARPA II and
JARPN II. This would have significantly expanded the scope of the Australian case, most likely haveresulted in delays in the progress of the case, added additional complexities with respect to not only
the legal argument but also the scientific evidence, and created challenges for the ICJ in having todeal with two related but different Article VIII special permit programs. An expansion of the case toalso include JARPN II would also have raised issues within Australia as to the national interest inchallenging Japan’s North Pacific whaling program where Australia does not have a direct interest.

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Donald R. Rothwell, The Whaling Case: Australian Perspectives, Kokusai Mondai (International Affairs), No.636,
November 2014
This is not the case with respect to JARPA II which has been conducted within the Australianproclaimed 200 nautical miles ‘Australian Whale Sanctuary’ offshore the Australian Antarctic
Territory. While Japan does not recognize either Australia’s territorial claim to Antarctica, or theAustralian Whale Sanctuary underpinned by the Environment Protection and Biodiversity
Conservation Act 1999 (Stephens and Rothwell 2007, Anton 2009), both provide a legal and national
interest for Australia with respect to JARPA II which is absent in the case of JARPN II.

THE JUDGEMENT FROM AN AUSTRALIAN PERSPECTIVE
The judgment in the Whaling case of 31 March represented a significant victory for Australia’s legal
argument before the court. Though not all of Australia’s legal arguments were adopted and endorsedby the court, the great majority were and ultimately the ICJ adopted an interpretation of Article VIII
that endorsed the Australian position that Japan’s conduct of JARPAII was not consistent withinternational law, including a significant finding that Japan was conducting commercial whaling. In
summary the critical elements of the court’s Orders from an Australian perspective are as follows:
1. That JARPA II Special Permits do not fall within the provisions of Article VIII;
2. That JARPA II does not fall within Japan’s obligations under paragraphs 10 (e) and (f) of the
ICRW Schedule to not engage in commercial whaling, and use factory ships;
3. That JARPA II does not fall within Japan’s obligations to refrain from conducting
commercial whaling within the IWC’s declared Southern Ocean Sanctuary. 16
In addition, the court also decided that:“Japan shall revoke any extant authorization, permit or licence granted in relation to JARPA
II, and refrain from granting any further permits in pursuance of that programme”. 17
The court therefore found in favour of the Australian perspective as to how Article VIII should beinterpreted, agreed with Australia that Japan’s conduct of JARPAII was not “for the purposes of”
scientific research, and that in the absence of Japan being able to issue legitimate special permits to
conduct JARPAII that Japan’s conduct was properly characterised as “commercial” rather than“scientific” and as such was contrary to the global moratorium on commercial whaling under the
ICRW. Given that Japan’s conduct was taking place in the Southern Ocean Whale Sanctuary, the ICJ
also found that Japan’s actions were in violation of the prohibition of commercial whaling activities
within those waters. In making these observations the court reinforced the view that the ICRW only

16

Whaling in the Antarctic [247].

17

Whaling in the Antarctic [247].

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Donald R. Rothwell, The Whaling Case: Australian Perspectives, Kokusai Mondai (International Affairs), No.636,
November 2014
contemplates three forms of whaling activities: special permit whaling under Article VIII, commercial
whaling, and aboriginal subsistence whaling. As Japan’s conduct was not consistent with Article VIII,
and Japan did not claim to be engaging in aboriginal subsistence whaling, then by default Japan was
engaging in commercial whaling which remained prohibited as a result of the moratorium.
Notwithstanding Australia enjoying great success before the court, the ICJ declined to issue all of theorders Australia had sought. In the final operative paragraph 246 of the judgment, the court noted asfollows:
The Court sees no need to order the additional remedy requested by Australia, which would
require Japan to refrain from authorizing or implementing any special permit whaling which
is not for the purposes of scientific research within the meaning of Article VIII. Thatobligation already applies to all States parties. It is to be expected that Japan will take accountof the reasoning and conclusions contained in this Judgment as it evaluates the possibility ofgranting any future permits under Article VIII, paragraph 1, of the Convention.
The most immediate consequence of these orders was that JARPA II was to cease immediately (Payne
2014). As the judgment was delivered a few weeks after the conclusion of the 2013-2014 JARPA II
season it had no immediate implications for any Southern Ocean whaling activities that may havebeen ongoing at the time. The immediate effect then of the court’s orders related to the conduct of
JARPA II in the 2014-2015 season and Japan has already indicated that it will abide by the decisionof the court and cease both current and future JARPA II conduct. In that respect, Australia’s
immediate objective of seeking to bring about an end to JARPA II has been a success and on the basisof statements made by Japan that form of purported Special Permit whaling will not be undertaken
again in the future.
Nevertheless, there are some dimensions of the court’s judgement and Japan’s subsequent conductthat would concern Australia. The first is that soon after the judgment the Japanese whaling fleet
commenced JARPN II for the 2014 season (Darby 2014). While the ICJ’s judgement does not directly
apply to JARPN II, that Japan continued with an activity based upon Article VIII Special Permits sosoon after its processes relating to the issuing of such permits in the case of JARPA II were founddeficient is a cause for concern. The second is that while Japan has indicated that it will not attempt to
conduct any form of Southern Ocean whaling for the 2014-2015 season, it has confirmed that it willconduct some form of future Southern Ocean whaling program from the 2015-2016 season (Darby
2014, Fensom 2014). The precise dimensions of that program are presently uncertain.
In this respect, paragraph 246 of the judgment may prove to be especially significant for both
Australia and Japan. While the ICJ clearly found that JARPA II was contrary to international law and
Article VIII of the ICRW, the court was not prepared to go beyond the boundaries of Australia’s case10
Donald R. Rothwell, The Whaling Case: Australian Perspectives, Kokusai Mondai (International Affairs), No.636,
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and make any orders or observations on any future Article VIII “special permit” program that Japan
may undertake in the Southern Ocean. Indeed, the court specifically left open the prospect of a future
Japanese whaling program in the Southern Ocean, observing only that it “is to be expected that Japan
will take account of the reasoning and conclusions” if it were to evaluate “the possibility of granting
any future permits” under Article VIII. The court therefore specifically contemplates the prospect ofJapan resuming whaling in the Southern Ocean at a future point in time, either under another iterationof JARPA such as a JARPA III, or a radically different type of “special permit” scientific research
program which may or may not involve the lethal take of whales.
How Japan actually responds to this aspect of the judgment remains to be seen. It is clear that JARPA
II can no longer continue. Even if it was to be significantly adjusted so as to bring it more into
compliance with the ICJ’s interpretation of Article VIII, a legacy of the court’s critique of the original
JARPA II would inevitably create suspicions as to the legality of the program. Japan would therefore
most likely seek to devise a completely new scientific research program if it was to resume “special
permit” whaling in the Southern Ocean. To that end the court’s judgment gives considerable guidance
as to how such a program could be devised consistently with the ICRW and international law, even if
such a program was to include the lethal take of whales. In this respect the elements that the ICJ
seized upon in its review of JARPA II will be critical. These elements included:
 Decisions regarding the use of lethal methods;
 The scale of the programme’s use of lethal sampling; The methodology used to select sample size; A comparison of the target sample size and actual take; The time frame associated with the program; The programme’s scientific output; and The degree to which a programme coordinates its activities with related research projects. 18
Japan will no doubt be studying this aspect of the judgment very carefully. It if does elect tocommence a new Southern Ocean whaling program, however, its conduct will come under additional
scrutiny within the IWC, which at the 2014 IWC meeting by way of Resolution 2014-5 instructed theScientific Committee to review all new special permit programs and provide advice to theCommission which will then in turn consider that advice and make recommendations on the merits ofa proposed Article VIII program.

18

Whaling in the Antarctic [88].

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CONCLUSION
From an Australian perspective the decision by the ICJ in the Whaling case was a vindication of apolitically and legally risky strategy to challenge the international legal validity of JARPA II. The
decision of the court has set a precedent for the interpretation of Article VIII of the ICRW which will
become a reference point for all subsequent debates over the conduct of special permit whaling,
especially in the Southern Ocean. Whether Australia is ‘satisfied’ with the decision will ultimately
depend upon how Japan responds in the medium to long term to the decision and in particular whether
Japan elects to undertake a modified whaling program in the Southern Ocean. The Whaling case is not
the first occasion that Australia and Japan have found themselves before an international court, havingin 1999 appeared alongside New Zealand in the Southern Bluefin Tuna cases before the International
Tribunal for the Law of the Sea (Klein 2009). The bilateral relationship survived that disagreement
and in light of Prime Minister Abe’s successful visit to Australia in July 2014 there is every indicationthat efforts to ‘silo’ the disagreement over whales has been a great success. However, how Japan
responds to the ICJ’s 2014 judgment in the future will be a test with respect to Japan’s interpretation
and respect for international law which may cause further challenges for Australia/Japan relations.

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