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Special Feature: Testing the Waters – the legality of whaling tried in Australia v Japan

If you are an Australian or New Zealander living in Japan for any extended period of time, whaling will undoubtedly have arisen as a topic of conversation. It may be sprung on you out of the blue at an enkai during a course of whale, or initiated by your own actions if you’re bored in the staff room and spoiling for a fight. Currently, Australia and Japan are engaged in a similar conversation on an international scale in the International Court of Justice with the case Whaling in the Antarctic(Australia v. Japan: New Zealand intervening).Emotions aside,* here is a summary of the law and the case as it stands as we await the verdict of the Court.

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The Convention
Australia and Japan are both signatories to the International Convention for the Regulation of Whaling (the Convention), and members of the International Whaling Commissionestablished under it. The Convention is directed towards providing for the proper conservation of whale stocks and ensuring the orderly development of the whaling industry.

The Convention establishes annual catch limits for members. Since 1986, this has been set at zero, effectively banning commercial whaling. However Japan currently exploits an exemption in the Convention, which allows member states to grant nationals a special permit to kill, take and treat whales for the purposes of scientific research. Japan has issued scientific permits in the Antarctic, specifically, the Japanese Whale Research Program under Special Permit in the Antarctic Phase II (JARPA II).

The objectives of JARPA II are defined by Japan as being:
1. Monitoring of the Antarctic ecosystem;
2. Modeling competition among whale species and developing future management objectives;
3. Elucidation of temporal and spatial changes in stock structure; and
4. Improving the management procedure for Antarctic Minke whale stocks.

whales2JARPA II has an annual quota of 850 minke whales, 50 fin whales and 50 humpback whales. Japan’s deputy foreign minister, Koji Tsuruoka, has stated that this “comprehensive scientific research program”is conducted due to Japan’s desire to “resume commercial whaling, based on science, in a sustainable manner”.

The ICJ Case
On 30 May 2010, Australia instituted proceedings before the International Court of Justice (ICJ) against the Government of Japan.In its submissions, Australia alleges that, by authorising and implementing JARPA II, Japan is in breach of its international obligations pursuant to the Convention as well as other international obligations for the preservation of marine mammals and the marine environment. In particular, Australia alleges Japan has breached, and will continue to breach, the obligations under the Convention to:

1. Observe in good faith the zero catch limit in relation to the killing of whales for commercial purposes; and
2. To act in good faith to refrain from undertaking commercial whaling of humpback and fin whales in the Southern Ocean Sanctuary.

In reply, Japan submitted that the ICJ had no jurisdiction to hear the claims brought by Australia, or, in the alternative, rejected the claims of Australia.

On 20 November 2012, New Zealand filed a Declaration of Intervention and was granted permission to intervene as a non-party by Court Order on 6 February 2013.

The Submissions
The key issue to be decided by the ICJ is whether JARPA II can properly be categorised as “scientific research” within the meaning of the exemption.

Australia argues that JARPA II is commercial whaling disguised as scientific research, and is not capable of justification under the exemption. JARPA II has “no testable hypothesis, no relation between means and ends, no peer review, no calculation of the need for lethal taking, [and] no endpoint in sight.”Having regard to the scale of the programme, “the lack of any demonstratedrelevance for the conservation and management of whale stocks, and to the risks presented to targeted species and stocks,” JARPA II cannot be justified under the Convention exemption as “science”.Australia requests the ICJ adjudge and declare Japan to be in breach of its international obligations, and to require Japan take various steps to cease implementation of JARPA II in violation of international law.

In reply, Japan argues that JARPA II adheres to the Convention exemption, and that the exemption “leaves each state free to decide for itself what should be included within its program of scientific research.” Japan states that the purpose of JARPA II is to obtain scientific information to establish whether commercial whaling is sustainable. Accordingly, it argues that the ICJ, as an international court of law, cannot decide between opposing scientific assessments, and that it is not enough for some scientists to disagree with the methodology of the programme for it to be considered unscientific.

The findings?
Public hearings concluded on 16 July 2013. The Court is now deliberating and will deliver a verdict at a future date. At this time a further update will be provided.

An ICJ judgment is binding on member states and there is no right of appeal.Both parties have agreed to be bound by the verdict.However Japan has indicated that an adverse finding may cause it to withdraw from the Commission and the Convention.

*In the interests of full and fair disclosure, the author does not agree with Japanese whaling for allegedly scientific purposes, however accepts that comparable arguments can be raised in relation to similarly unethical and unsustainable practices linked to commercial meat production in Australia and internationally. While this account will therefore be influenced by subjective bias, to the greatest extent possible neutral language has been used to provide as informative and impartial an analysis as possible.

Kylie Pinder
Want to follow the case? Have a look at The International Court of Justice for official court documents and party arguments.

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