ICJ Whaling Ruling

This week, the International Court of Justice (“ICJ”) ruled (Whaling In The Antarctic (Australia v. Japan: New Zealand Intervening)) against Japanese whaling activities in the Southern Ocean finding that Japan’s JARPA II whaling program was not for scientific purposes and ordering that all permits given under JARPA II be revoked.

You may be familiar with the popular TV show, Whale Wars, which followed marine conservation organization Sea Shepherd’s attempts to dissuade Japan’s whaling fleet from hunting whales as part of it’s Japanese Whale Research Program. This case deals directly with that hunt.

On May 31, 2010, Australia filed an Application at the ICJ against Japan concerning:

“Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling . . . , as well as its other international obligations for the preservation of marine mammals and the marine environment”.

Australia sought a declaration from the ICJ that Japan was in breach of its international obligations in implementing the JARPA II program in the Southern Ocean and asked that the ICJ order Japan to:

– cease implementation of JARPA II

– revoke any authorizations, permits or licences allowing the activities which are the subject of the application; and

– provide assurances and guarantees that it will not take any further action under JARPA II, or any similar program, until it conforms with international law.

The International Convention for the Regulation of Whaling (“ICWR”) was in issue in this application. Australia argued that JARPA II was not a program for purposes of scientific whaling within the meaning of Article VIII of the ICWR. Japan, of course, maintained that its hunt was for scientific purposes.

The specific Article reads:

“Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.”

Australia contested that JARPA was conceived in order to continue commercial whaling under the guise of scientific research, though Japan asserted that JARPA was launched “for the purpose of collecting scientific data to contribute to the ‘review’ and ‘comprehensive assessment’” of the moratorium on commercial whaling that had been adopted by the International Whaling Commission (“IWC”) in 1982.

In assessing JARPA II, and whether the design and implementation were reasonable in relation to achieving Japan’s research objectives, the ICJ found, amongst other things, that:

– the JARPA II Research Plan lacked transparency in the reasons for selecting particular sample sizes for individual research items;

– the JARPA II Research Plan had a considerable increase in the scale of lethal sampling;

– the stated sample sizes for fin and humpback whales were too small to provide the information necessary to pursue the JARPA II research objectives;

– in light of the fact that JARPA II had been ongoing since 2005 and involved the killing of 3,600 minke whales, the scientific output appeared limited;

– there was evidence that the research program could have been adjusted to require a much smaller sampling size;

Taken as a whole, the ICJ found that JARPA II involved activities that could be broadly characterized as scientific research, but that the evidence did not establish that the program’s design and implementation were reasonable in light of the stated objectives.

The ICJ’s decision is legally binding upon Japan and cannot be appealed.

By James Early.