Based on the relationship between the sovereignty of States and the legitimacy of the actions of international courts in resolving disputes, the topic of the jurisdiction of the International Court of Justice – ICJ in resolving the conflict between Australia and Japan, which occurred in 2014, was chosen to carry out an academic analysis.

According to the full text of the decision, both Australia and Japan expressed reservations regarding the jurisdiction of the ICJ to resolve certain disputes that might arise in their interstate relations. When interpreting the ICJ Statute, in Article 36, §2, both countries accepted the jurisdiction of the aforementioned court to judge maritime disputes, but with specific interpretations.

In its statement, Australia interpreted the aforementioned article as meaning that the ICJ’s jurisdiction is compulsory, regardless of a special agreement, except only in cases concerning the delimitation of maritime spaces or “area disputes”. Japan, in its statement, interpreted the article as meaning that, like Australia, it grants to the ICJ compulsory jurisdiction regardless of a special agreement, except in cases subsequent to September 15th, 1978 as well as cases which have provided for other peaceful means of dispute settlement (ICJ, 2014, pp. 242-246).

The first analysis to be made regarding this scenario is about the, a priori, compulsory nature of the jurisdiction exercised by the ICJ in the case, as accepted by both Australia and Japan. According to Karen Alter, as a rule, the jurisdiction of international courts in the resolution of interstate disputes is optional, unless expressly provided for in agreements as being mandatory (ALTER, 2014, p. 161).

It is also important to clarify that the fact of the jurisdiction being mandatory does not necessarily grant the international court enforcement jurisdiction, so that, even if it has compulsory action in the resolution of the international conflict, the court will not automatically have the power to obligate the application of the decision (ALTER, 2014, p. 162). In the case of the ICJ, within the judgment under analysis, it can be said that its jurisdiction is shown to be compulsory based on the expressed acceptance of both countries involved, but does not have an enforcement nature, since its decision is not binding nor does it have the force of law, as Alter demonstrates in her study (2014, p. 163).

It is also necessary to note that both Australia and Japan are signatories to the United Nations Convention on the Law of the Sea – UNCLOS, which has a dispute settlement system set out in its Part XV. According to Paulo Emílio Vauthier Borges de Macedo (2014), the Article 280 of the aforementioned international convention brings a mixed natured dispute settlement system.

In principle, the system can be understood as being voluntary, since it allows countries to opt for bilateral negotiation to resolve interstate disputes. However, if such negotiation fails, the dispute settlement system provided for in the UNCLOS becomes compulsory, since countries must, mandatorily, opt for one of the four legal methods provided by Article 287 (1): the International Tribunal for the Law of the Sea – ITLOS, the International Court of Justice – ICJ, a general arbitration tribunal, constituted in accordance with Annex VII, or a specialized arbitration tribunal, constituted in accordance with Annex VIII.

Besides, it is important to clarify that, in the case under analysis, Australia filed the lawsuit against Japan claiming that the country was violating the International Convention for the Regulation of Whaling, since the Japanese country used lethal means against animals for commercial purposes, and not for scientific research (CIJ, 2014, p. 16).

It is clear, when observing the case narrated, that this is not a conflict over the application or interpretation of UNCLOS, so that, according to article 286 of the aforementioned legal instrument, the application of its dispute resolution methods is not applicable here, unlike the “Ara Libertad” case, of 2012, and the “Virginia G” case, of 2014, since both dealt with the detention of vessels and discussed the application and violation of articles of UNCLOS. Thus, since both countries involved in the dispute – Australia and Japan – have opted for the ICJ and accepted its compulsory jurisdiction (under Article 36, §2 of the Court's Statute), its judgment appears, at first glance, to be legitimate and binding.

However, it is important to note that the Japanese whaling took place in a highly debatable location. Although this does not address the merits of the dispute, is necessary to make an analysis of the maritime space where Japan was operating, since it affects the jurisdiction of the ICJ to judge the case. According to the full text of the decision, when Australia accepted Article 36, §2 of the ICJ Statute, its declaration, as seen, had some reservations, bringing exceptions to the court's jurisdiction. Reading the Australian statement, it is clear that the country rejects the compulsory jurisdiction of the ICJ in cases where the discussion concerns the delimitation of maritime spaces and the dispute over areas.

It is important to explain that the maritime region where Japan was conducting whaling is Antarctic maritime space, which Australia intends to legally make part of its Exclusive Economic Zone (EEZ). Because of this, Japan claimed that there was, in a way, an area dispute, understanding that the case applied to the exception brought by Australia to Article 36, §2 of the ICJ Statute, excluding its jurisdiction to resolve the interstate dispute. If the Japanese argument was accepted, the ICJ could no longer be considered competent to judge the case, and the countries would have to seek dispute resolution methods contained in the UNCLOS, since the issue would deal with a dispute over maritime space, specifically, the EEZ.

Although Australia has not yet obtained legal authorization to consider the region part of its waters, it is important to note that, if it had, UNCLOS expressly provides for the jurisdiction of the coastal State to preserve the EEZ, establishing jurisdiction for the protection and preservation of the marine environment (article 56.1, c, iii), as well as the obligation of the flag State to respect the laws and regulations adopted by the coastal State in the region (article 58.3), as understood by the International Tribunal for the Law of the Sea – ITLOS (in English) when judging the “Virginia G” case (2014, p. 70). It can be said that such rights arise from the binomial “flexibility and predictability”, defended by Yoshifumi Tanaka (2006, p. 4) as being essential elements to compose the rules of maritime delimitation, in the sense of there being both an adaptation to the particularities of each case, as well as legal certainty.

However, since it cannot be stated that the region where the whaling took place was Australia's EEZ, not only it does not have the coastal State rights guaranteed by UNCLOS, but also the exception in its declaration does not apply to the case under study. This is because there was not an area dispute, in the sense of delimitation of maritime space, between Australia and Japan, as correctly understood by the ICJ in its decision (2014, pp. 244-246). According to Joanna Mossop (2013):

It seems unlikely that Japan could challenge jurisdiction on this basis as the dispute is phrased in terms of the International Convention for the Regulation of Whaling and other international law conventions rather than an issue relating to the exploitation of a maritime zone. Japan lodged its declaration on 9 July 2007. There appear to be no unusual reservations which it could rely on to deny jurisdiction.

Thus, in compliance with the express acceptance of the aforementioned court as compulsory jurisdiction in the event of a dispute, and since UNCLOS does not apply to the dispute, it is concluded that, in fact, the ICJ has compulsory jurisdiction over the matter. Given that, as explained above, the ICJ does not have enforcement jurisdiction nor enforcement mechanisms.

Finally, it is important to conclude that, in view of all of the above, the sovereignty of the litigant States was at no time interrupted, or even mitigated. It can be observed that, at all times, the discussions on rights, duties and jurisdiction were about the countries' own choices: the signing of the treaties, the interpretation of the articles, their acceptance or not, and even their exceptions. In view of the facts and the legal provisions (expressly accepted by Australia and Japan), it is observed that the jurisdiction of the ICJ was compulsory and exclusive, but by the express will of the parties. Therefore, the solution found by the international court in its judgment was legitimate, impartial and correct, respecting in all circumstances the sovereignty of the litigant countries.