Testing the Waters Part 2: The Legality of Japanese Whaling Tried in Australia v Japan

 

Japanese Whaling Not “for purposes of” Scientific Research

 

On 31 March 2014 the International Court of Justice handed down its long-awaited decision in Australia v Japan, concerning the legality of whaling in the Antarctic Ocean. While the decision in Australia’s favour effectively prevents Japan’s continued whaling hunt in the Antarctic under its current programme, Japan will continue its hunt in the North Pacific despite fears of similar litigation being instituted.

 

The Argument

On 31 May 2010 Australia instituted proceedings against Japan in the International Court of Justice (the Court), alleging Japan’s whaling programme under the Second Phase of its Japanese Whale Research Programme under Special Permit in the Antarctic (JARPA II)* was in breach of its obligations under the International Convention for the Regulation of Whaling (the Convention), as well as other international obligations.

 

The Convention implements a system to regulate and conserve whale populations by establishing an annual catch limit for members. Since the moratorium in 1986, this limit has been set at zero, effectively preventing the killing of whales for commercial purposes.  Article VIII of the Convention, however, allows States to grant special permits to kill, take and treat whales “for purposes of scientific research.” It is under this exemption that JARPA II was devised and implemented.

 

In its arguments, Australia alleged that JARPA II was not a programme for the purposes of scientific research within the meaning of Article VIII, as it lacked defined and achievable objectives aiming to contribute to the conservation and management of whale stock. Instead, JARPA II was implemented to continue commercial whaling under the guise of scientific research, with Japan’s goal “to ensure [its] whaling can continue in some form or another.”

Japan argued that JARPA II was undertaken for scientific purposes, namely, to collect scientific data to contribute to the review and assessment of the moratorium. At the time of the moratorium, “the justification […] was that data on whale stocks was inadequate to manage commercial whaling properly”, therefore it was “best to start the research programme as soon as possible.” Japan also submitted that it is the State issuing the special permit that is in the best position to determine whether a programme is intended for purposes of scientific research.

 

The Findings – Article VIII

Central to the case was the interpretation and application of Article VIII. Article VIII states that:

 

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.

 

The Court found that while Article VIII gives Member States a discretion to grant or reject a special permit, whether the subsequent killing, taking and treating of whales is “for purposes of scientific research” cannot solely be determined by the State.

 

The phrase, “for purposes of scientific research” is to be read cumulatively. Therefore even if a programme has an element of scientific research, the killing, taking, and treating of whales will not fall within Article VIII unless this is “for purposes of scientific research.” With this understanding, the Court focused on the meaning of the term “for purposes of” rather than what is encompassed within the term “scientific research.”

 

In determining whether a programme’s use of lethal methods is “for purposes of” scientific research, the Court will consider the elements of the programme’s design and implementation, and whether these are reasonable in relation to stated research objectives. Elements requiring consideration include the scale of lethal sampling, the methodology employed to determine sample sizes, the difference between sample sizes and the actual intake, the timeframe of the programme, its scientific output, and the degree to which the programme is coordinated with related research projects.

The Findings – JARPA II

While JARPA II involved activities broadly characterised as “scientific research” within the meaning of Article VIII, Japan failed to establish that the programme’s design and implementation were reasonable in relation to achieving its stated objectives. The Court found, inter alia, that there was no evidence of Japan conducting studies into either the feasibility or practicability of non-lethal methods, or reducing the lethal intake while increasing non-lethal sampling. There was little evidence as to how overall sample size was determined, and a significant gap between target sample sizes and the actual intake. Additionally, the programme’s open-ended timeframe, limited scientific output, and lack of cooperation with other research programmes, meant that it could not properly be characterised as a programme for purposes of scientific research.

 

The Future

The Court, by twelve votes to four, found that the special permits granted by Japan under JARPA II did not fall within the Article VIII exemption, and in granting special permits Japan failed to act in conformity with its obligations under the Convention. The Court ordered Japan to revoke any special permits granted under JARPA II, and refrain from granting further permits in pursuance of the programme. Despite initially threatening to withdraw from the Convention in the event of an adverse finding, Japan has indicated its acceptance of the decision, and has cancelled its next Antarctic whaling hunt. Japan is scheduled to send whaling ships to the North Pacific this month, however officials fear similar litigation being instituted against the whaling hunt in that area.

 

The Lower House committee on agriculture and fisheries recently approved a resolution demanding the Japanese government continue to hunt whales, in defiance of the decision. A Lower House member, Shunichi Suzuki stated that “Japan’s whaling is based on scientific reasons, while counterarguments by anti-whaling groups are emotional, saying they are against the hunts because whales are cute or smart.” This statement potentially contradicts that of the Japanese Fisheries Minister, who stated “[we] will not change our position that we will continue to take maritime protein.”

 

It is unlikely the Japanese government will take this resolution seriously; Japan is not known for its willingness to concede cultural aberrations, and already there are talks of designing and implementing a new programme, albeit with a reduced sample size. The inevitability of its introduction ensures that while Australia has won this battle, the war against whaling continues.

 

Kylie Pinder

*This is the actual name of the special permit and not the poor writing of the author.