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Whaling in the Antarctic Australia v. Japan (New Zealand intervening)

By Malgosia Fitzmaurice

After four years of anticipation the International Court of Justice delivered a Judgment in the whaling case. The Judgment raises many issues of ecological nature. It also analyses and interprets the provisions of the 1946 International Convention for the Regulation of Whaling (ICRW) thus enriching the law of treaties.

Historically whaling has been a contentious issue. Even early attempts at its international regulation were contested. The need for the regulation of whaling was brought to the League of Nations attention in 1925 by M. José Suarez in his report on Codification Questionnaire no. 7 ‘Exploitation of the Products of the Sea’ in which observed that the modern whaling industry was ‘rapidly exterminating the whale’. Before the Second World War there two Conventions attempted to regulate the whaling. The Convention for Regulation of Whaling was opened for signature in Geneva on 24 September 1931 and signed by 31 States (with only eight ratifications), and 1937 Agreement for the Regulation of Whaling and Final Act was signed on 8 June 1937.

The 1946 ICRW had a double purpose: the protection of whales and the orderly regulating of the whaling industry, which at the time of this Convention was thriving. However, with the passage of time the ecological purpose of the Convention started to play the more prominent role, culminating in the establishment of the 1982 moratorium on commercial whaling (“zero quotas” effective in 1985-86 season). That decision lead to the amendment of the Schedule (para. 10e) that is an integral part of the Convention. However, Norway opted out of this decision on moratorium and Iceland appended a reservation after the re-joining the Convention, thus both States still continue commercial whaling, setting their own national quotas outside the jurisdiction of the International Whaling Commission (IWC), the Convention’s regulatory body. Japan initially opted out of moratorium but later withdrew it.

The IWC consists of eighty-nine States, the majority of which are non-whaling States, making it a rather unusual international institution. It would be a simplification to argue that there is only a handful of States opposing resuming of the commercial whaling. The IWC is in a permanent crisis due to its policies. These tensions were expressed in the 2006 St Kitts and Nevis Declaration, in which several States stated “their concern that the IWC has failed to meet its obligations under the terms of the ICRW” and declared their “commitment to normalize the functions of the IWC based on the terms of the ICRW and other relevant international law, respect for cultural diversity and traditions of coastal peoples and the fundamental principles of sustainable use of resources.”

The ICRW permits three types of whaling: commercial, scientific, and aboriginal (subsistence) whaling — all of them very complex legally and contentious. After 1986 Japan has conducted whaling operations in the Southern Ocean under the auspices of the scientific research or special permit. Whale Research Program under Special Permit in the Antarctic‟ (JARPA I) began in the year following the 1986 moratorium. The JARPA II began in 2005.

A Minke whale and her 1-year-old calf are dragged aboard the Nisshin Maru, a Japanese whaling vessel. Photo by Australian Customs and Border Protection Service, 6 February 2008. CC BY-SA 3.0 Australia via Wikimedia Commons
A Minke whale and her 1-year-old calf are dragged aboard the Nisshin Maru, a Japanese whaling vessel. Photo by Australian Customs and Border Protection Service, 6 February 2008. CC BY-SA 3.0 Australia via Wikimedia Commons.

The subject-matter of the recent Judgment of the International Court of Justice was Japanese scientific whaling based on Article VIII of the ICRW, which permits State parties to issue special permits authorizing the taking and killing of whales for scientific purposes. This type of whaling (unlike commercial and aboriginal) is regulated by national authorities, not the IWC. State parties issuing permits under Article VIII have only a procedural requirement of reporting to the IWC.

In very broad brushstrokes the case was based on Australia’s allegation that Japanese scientific whaling was in fact a disguised commercial whaling; moreover, Australia alleged bad faith on the part of Japan. Japan relied in its pleadings on a long tradition of eating whale meat and arguing that in fact the analysis of the ICRW permits sustainable whaling. The case also has certain jurisdictional issues. The court unanimously found it had jurisdiction to hear the case, and by 12 votes to 4 found that special permits granted by Japan in connection with the program, JARPA II, did not fall within the IWC convention.

From the point of view of the law of treaties, the interpretation of Article VIII of the ICRW was of fundamental importance. The Court noted that taking into account the Preamble and other provisions of the ICRW, neither a restrictive not an expansive interpretation of Article VIII is justified. The Court observed that the programmes for purposes of scientific research should foster scientific knowledge. They may pursue an aim other than either conservation or sustainable exploitation of whale stocks. The Court, however, has not provided the definition of scientific research but analysed and interpreted the phrase “for purposes of”.

The Court concluded that although Art. VIIII of the ICRW exempts from the Convention grant of special permits, scientific whaling is not outside of the Convention. Therefore the ‘margin of appreciation’ of States (members of IWC in such a type of whaling as pleaded by Japan) is not unlimited and must conform with an objective standard (para 62 of the Judgment). The Court raised doubts over increased sample sizes between the country’s first whaling program and JARPA II. It also noted lack of transparency in how its sample sizes were determined and found that Japan has not sufficiently substantiated the scale of lethal sampling. The Court stated that JARPA II involves activities that in broad terms can be characterized as scientific research, but that “the evidence does not establish that the design and implementation of the Program are reasonable in relation to achieving its stated objectives.” The Court concluded that JARPA II is not “for purposes of scientific research” pursuant to Article VIII (1) of the Convention and that Japan violated the three relevant provisions (paragraphs 7(b), 10 (d) and (e)) of the schedule.

Most importantly, the Court has emphasized the lack of Japan’s willingness to cooperate with the IWC in the use of non-lethal scientific methods which became available intervening years.

The ICJ therefore ordered revoking by Japan any pending authorization, permit or license to kill, take or treat whales in relation to JARPA II, and refraining from granting any further permits under Article VIII (1) of the Convention, in pursuance of that Program. Japan said it would abide by the decision but added it “regrets and is deeply disappointed by the decision”.

The Judgment of the Court does not impact of future scientific whaling of Japan and the Court noted that Japan will rely on Judgment’s findings ‘as it evaluates the possibility of granting any future permits under Article VIII, paragraph 1, of the Convention’ (para. 246 of the Judgment).

By judicial necessity, the Court only discussed the case at hand but as a result it has not submitted any definition of scientific whaling and declined to adopt a specific set of criteria to this effect. It declined to discuss commercial whaling and also indigenous whaling. It made some general observations as to linking scientific whaling to the whole nexus of rights and obligations of States under the ICRW and clarified the issue of the margin of appreciation regarding the issuance of special permits, both are a very useful observations but of certain complexity in implementation. It also admitted the possibility of future Japanese whaling, as indeed it cannot be prohibited. In the meantime Japanese scientific whaling in northwestern Pacific is to continue (as well as Icelandic). The Judgment has not resolved the basic conflicts and has not addressed general issues.

There have been a wide-spread applaud as to the Court’s Judgment, which of course is fully understandable. However, there are many questions which were raised by this Judgement relating to the law of treaties and whaling itself. For example there is a question of the choice of the canons of the interpretation of an international legal instrument: the classical rule of the 1969 Vienna Convention on the Law of Treaties or much more daring and contentious evolutionary interpretation (applied with varying degree of success by the European Court of Human Rights), which is closely connected to the issue of consent. The textual interpretation of the ICRW clearly indicates that it allows scientific whaling and commercial whaling. Does the development of general international environmental law, including the preservation and protection of fauna and flora permit a different, evolutionary interpretation that prohibits these activities?

Japan agreed to abide by the Judgment but theoretically it could leave the Convention on commercial whaling, which would defeat the purpose of the Judgment. It can also leave and later re-join the Convention with a reservation (as Iceland did). What about Icelandic scientific whaling? It wasn’t challenged before the Court but it exists and the Judgement will not make any difference to it.

However, the Judgment has provided a very fertile ground for further studies.

Malgosia Fitzmaurice is the co-editor of The IMLI Manual on International Maritime Law, Volume I: The Law of the Sea with David Attard and Norman Martinez. She is a Professor of Public International Law at Queen Mary, University of London. She specialises in international environmental law, treaties, indigenous peoples and Arctic law and has published widely on these subjects.

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