As the prime ministers of the two countries publicly acknowledge, fish conservation is the only area where Japan and Australia have differing views. Japan is one of the major fishing countries in the world and Australia has long been the spiritual leader of the global fish conservation group. The diplomatic wrangling between the two countries has been particularly tumultuous over Japan’s southern ocean whaling program.

The “whaling” tension has continued to intensify in recent years as the Japanese whaling vessels have become frequent targets of anti-whaling activists from Australia and other countries. The anti-whaling protesters have boarded Japanese whaling vessels in high seas off the coast of Western Australia, and sometimes thrown paint or rancid butter in bags at the whaling ships.

Two years ago, a New Zealander who had boarded a Japanese whaling vessel in protest was later convicted by a Japanese court of assault and trespass before his deportation to his home country. An Australian Federal Court even issued a judgment in 2008 declaring that Japanese whaling in the Australian Whale Sanctuary in Antarctica is a breach of Australian law.

Having seen all this, Australia and Japan are now attempting to resolve their differences, once and for all, at a forum of last resort: the U.N.’s International Court of Justice in The Hague.

The ICJ is the highest adjudicating body for international disputes to which countries refer their most sensitive legal problems with other countries ― including territorial disputes, treaty interpretations and military conflicts.

All 192 members of the U.N. are automatically parties to this court. Among them, 67 states have voluntarily accepted the “compulsory jurisdiction” of the court, meaning that they allow other countries to bring a legal action against them in the court, as is commonly observed in a domestic legal system. As for the other 125 countries, a case-by-case consent is a prerequisite. Japan has been one of the most significant recent additions to the list of 67 “compulsory jurisdiction” countries when Tokyo accepted it in July 2007.

The acceptance of the jurisdiction may have been welcomed by Australia. In May 2010, Australia filed its complaint with the ICJ, alleging that Japan’s whaling program had violated the 1946 International Convention on the Regulation of Whaling. The U.S. diplomatic cables sent from Canberra released by WikiLeaks detail the internal discussions on pros and cons inside the Australian government concerning the appropriateness of initiating an ICJ proceeding against a close economic ally and the strength of its case. So started Japan’s first (and Australia’s fourth) ICJ proceeding and intermediate court deadlines have been set and met. Under the current pace, the judgment is expected to be released by sometime next year.

Perhaps the outcome of this dispute is a matter of concern for the two countries only. But watching how two friendly countries negotiate, get frustrated and end up in court is both suggestive and informative. As for those countries in this part of the world, who have possibilities of encountering each other at adjudicative proceedings in the back of their mind, Japan’s decision to be more actively involved in the ICJ proceeding is an interesting development to keep an eye on.

As with domestic trials, international litigation requires extensive experience and expertise. There is a huge difference between those who have “been there, done that” and those who haven’t. Most countries scramble to cram when a proceeding is imminent, but it is usually too late.

This proceeding and future proceedings with other countries at the ICJ may enable Japan to solidify its status as the leading country in Asia in the field of international law. What prompted Japan to accept the compulsory jurisdiction in 2007 and how it has prepared to participate in the present and future proceedings would offer an interesting case study material for countries in the region.

Contrary to common notion, all this state-to-state litigation at the ICJ is open to the public, so anybody can watch it after prior registration. And the schedule for the “oral hearing” of the Australia-Japan dispute, in which the top professionals of the two countries appear and make arguments for their countries, will be released sometime soon, so stay tuned.

By Lee Jae-min

Lee Jae-min is a professor of law at the School of Law, Hanyang University, in Seoul. Formerly he practiced law as an associate attorney with Willkie Farr & Gallagher LLP. ― Ed.