By Josh Zuckerman ’16
It would not be absurd to assume that the vast majority of civilized peoples do not approve of whaling. Personally, I find the practice disgusting, abhorrent, and barbaric. This is not because I am an animal-rights activist or have any specific penchant for whales, but simply because I oppose the slaughter of an endangered and intelligent species for something as unnecessary as overpriced delicacies. That being said, I find myself today in the unlikely position of having to adamantly defend Japanese whaling against an even more despicable product of so-called civilization—the International Court of Justice.
On March 31, 2014, the International Court of Justice (ICJ) ordered Japan to immediately cease its whaling operations in Antarctic waters. Simply put, this ruling infringes upon Japanese sovereignty. In order to understand why opponents of the international, global order should support Japan despite its fondness for harpooning our blubbery friends, a brief overview of the ICJ is necessary. Established in 1945, the Court’s mission “is to settle, in accordance with international law, legal disputes submitted to it by States.” In addition to dealing with one of the problematic and perennial questions of international relations—how (and if) international law can truly exist—the Court must also navigate contentious issues regarding its jurisdiction. The United States, for example, wisely refuses to acknowledge the Court’s jurisdiction; after losing the case Nicaragua v. United States, the US withdrew from the Court’s jurisdiction and used its Security Council veto to prevent implementation of the ruling.
Japan’s defeat is truly terrifying primarily because the Japanese contested the jurisdiction of the Court. The legal nuances of the Court’s jurisdiction are rather subtle. Generally speaking, it “can only deal with a dispute when the States concerned have recognized its jurisdiction.” The full ruling with regard to jurisdiction is difficult to decipher without expertise in international law and the history thereof. However, the important part is that the Court denied Japan’s request that it “adjudge and declare that it lacks jurisdiction over the claims brought against Japan by Australia.”
This brings up yet another interesting point—how does Australia possibly have legal standing to sue Japan over its whaling activities? The whales do not belong to Australia; no property of the nation or its denizens is being injured. At issue is a 1946 treaty called the International Convention for the Regulation of Whaling, which limits most forms of whaling that are conducted for non-scientific purposes. Japan and Australia are both parties to the treaty. Is Japan violating the treaty? Probably—although it insists its whaling activities are conducted for scientific purposes, this claim is dubious at best. As a fellow party to the treaty, Australia has every right to express consternation with Japan and to seek redress for its grievances. However, the notion that such redress can come from the ICJ is outrageous.
The idea that a supranational and objective body can peacefully solve all disputes that arise between nations, while comforting given the postwar context of the ICJ’s creation, is rather naïve. Ideological defenders of the ICJ will make an argument that sounds something like this:
Premise 1: Nations do not always abide by treaties.
Premise 2: When a nation violates a treaty, it generally hurts the other nations that have signed the treaty.
Premise 3: A nonviolent mechanism to enforce treaties is necessary.
Premise 4: Nations are biased in favor of their own self-interest.
Conclusion: Because nations are biased and cannot be trusted to meet their treaty-driven obligations, an institution like the ICJ is needed to compel nations to fulfill their promises.
I do not dispute the premises, only the conclusion.
Given that these premises are true, how does it follow that the creation of the ICJ is foolish? As I have previously mentioned, it constitutes a major violation of national sovereignty. Forcing Japan to amend its own laws, given the absence of any human rights violations, is despicable and intolerant of a foreign culture. Consider a similar case in which the ICJ ruled that Texas’s gay marriage ban violated human rights or that the United Kingdom has no right to maintain its current lack of separation of church and state. As one can clearly see, the ICJ has no moral right to force a nation to alter its domestic laws.
Furthermore, the ICJ is laughably dumb from a realistic or pragmatic standpoint. The whole point of a court system is to force an unwilling party to abide by the law. In order to force someone to do something, coercion is obviously needed. This is why national court systems work; they have coercive power. If a Japanese woman breaks Japanese law, a Japanese court can throw her in Japanese prison. Whaling is not against Japanese law. I am no expert on the Japanese legal system, but the Japanese have clearly interpreted the International Convention for the Regulation of Whaling in such a manner that permits its citizens to hunt whales.* What is the point of a justice system that cannot enforce its decisions? The UN, thank God, has no army, police force, or prisons; UN peacekeepers in the light-blue helmets will not sail the seven seas arresting Japanese whalers. Therefore, the UN cannot possibly compel Japan to abide by its decision. Japan, of course, may abolish its whaling program at any moment it wishes.
*—Shameless moment of self-promotion: In American law, treaties are not binding upon citizens unless enforced by a subsequent domestic law. See my article in the December 2013 Tory for more on this point.
This brings up an important question and brief digression—why does national sovereignty even matter? This is not the forum to answer this question from a normative standpoint. A pragmatic approach will therefore suffice. The alternative to national sovereignty, of course, is international sovereignty, a system in which a supranational organization such as the UN or EU makes decisions for each of its member states. These institutions are designed to be far more culturally, economically, and politically heterogeneous than their constituent nations. They therefore lack expertise regarding specific nations or cultural ties to specific people. The problem this creates is best illustrated with a specific example. Although utterly inept and hopelessly incompetent, our current Congress is far more capable of ruling the United States than the UN General Assembly is. At least Congress is familiar with America, its laws, its economy, its people, and its political tradition. While the EU, if in charge of the US, would immediately disregard the cultural importance of the Second Amendment, the majority of Congress would not. Similarly, Congress would act to ban whaling, but the Japanese National Diet has no desire to do so.
However, if Japan does not want to abide by the treaty, who can possibly force it to do so? What alternatives to the ICJ exist? Australia clearly wants Japan to cease whaling. If it is passionate enough, it can always resort to economic sanctions or military force, both of which would be extreme overreactions given Japan’s economic prowess, commitment to democracy and human rights, and status as a key ally of the West. The best alternative to the ICJ (and most other governmental actives), therefore, is the free market. If nations or their citizens are sufficiently appalled by whaling, they can boycott Japanese goods in order to bring about change.
Australia is clearly unwilling to take matters into its own hands, and rightfully so, given that there is no rational way to coerce Japan into a cessation of its whaling activities. It is utterly shameful that our friends down under have resorted to the ineffective and immoral ICJ in order to attempt to exert its will. Japanese whaling will end if and only if the Japanese people willingly decide to abandon the hunt for moral or economic reasons. Until then, I can only hope that whales will swim quickly.