Sunday, February 24, 2013

New Zealand Allowed to Intervene in the ICJ Case "Whaling in the Antarctic" (Australia v. Japan)

The International Court of Justice has issued a unanimous order allowing New Zealand to intervene in the pending case brought before it by Australia against Japan.  

The ICJ found that New Zealand's intervention relates to points of interpretation of the International Convention for the Regulation of Whaling, the treaty at the heart of the case between Australia and Japan.  That Convention provides in Article VIII(1) that "any Contracting Goverment may grant to any of its nationals a special permit authorizing it to kill, take, and treat whales for purposes of scientific research . . . ."

Japan did not object as such to the admissibility of New Zealand's intervention, but it stated that "certain serious anomalies" would result from having New Zealand join as an intervenor.  In particular, Japan stressed the need to ensure the equality of parties before the ICJ and expressed concern that Australia and New Zealand could "avoid some of the safeguards" of procedural equality under the ICJ's Statute and Rules.  

As a particular example, Japan pointed out that Australia had already appointed a judge ad hoc to the case (something countries can do when the bench does not include one of its own nationals), but that there was a judge from New Zealand already on the bench.  The ICJ stated that the Japanese concerns did not affect the admissibility of New Zealand's petition to intervene, and that under Article 63 of the ICJ Statute and Rule 82 of the ICJ Rules, intervenors are limited to submitting observations on the construction of the treaty in question and that they do not become a party to the proceedings to deal with any other aspect of the case before the Court.

Click here to read the ICJ Press Release, which contains more details about the issue of Australia's ad hoc judge as well as summaries of the separate opinions and declaration of:

  • Judge Owada (who voted in favor of the order to intervene but who expressed his serious reservations that New Zealand's intervention could affect the equality of the parties and thus the fair administration of justice);
  • Judge Cancado Trindade (who voted in favor but found -- in a ten-part separate opinion that is sure to be studied carefully -- that a proper understanding of intervention in legal proceedings before the ICJ would contribute to the further development of international legal procedure); and
  • Judge Gaja (who voted in favor but wrote in a separate declaration that the ICJ should have specifically considered that the construction of the International Convention for the Regulation of Whaling would be binding on intervening states).

Mark E. Wojcik (mew)

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