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Whaling in the Antarctic, Australia and New Zealand (intervening) v Japan, ICGJ 471 (ICJ 2014)

This case is about the instance when Australia, and later New Zealand as a non-party, approached the International Court of Justice (ICJ) against Japan. Australia alleged that Japan was violating the International Convention for the Regulation of Whaling (ICRW) and other agreements while conducting the large-scaled whaling program.

By: Megha Gautam, 1st Year BBA-LL.b. student at Amity Law School, Noida

FACTS:

  • On 31st May, 2010 Australia filed a case in the ICJ (International Court of Justice) against Japan in relation to the dispute dealing with its large-scaled whaling program under the Second Phase of Japanese Whale Research Program (JARPA II) under the provision of special permit.
  • It was purported that Japan was breaching its obligations under the International Convention for the Regulation of Whaling (ICRW).
  • And on 20st November, 2012 New Zealand in accordance with Article 63, paragraph 2, in the statute filed, in the Court, a Declaration of Intervention in the case.
  • Consequently, by the order of 6 February, 2013 the Court made the intervention of New Zealand admissible. 

ISSUES:

  • Whether the Court was right in adjudicating over this matter. Whether this claim falls within the jurisdiction of the Court and also whether Australia’s claim of exploitation of the maritime zone is valid.
  • Whether Japan was breaching its international obligations as provided by the International Convention for the Regulation of Whaling (ICWR) by permitting to take, kill and treat humpback, fin and Antarctic minke whales.
  • Whether the permission given by Japan in relation with the (JARPA II) under Special Permit provision lies within the Article VIII, paragraph 1, of the (ICRW).
  • Whether Japan should be asked to abrogate permits, licenses or any authorizations which allowed the killing, taking and treating of whales.

ARGUMENTS BY THE APPELLANT:

  • Both Japan and Australia are party to the ICRW. Although Japan accepted the moratorium in 1986 relating to commercial whaling, it was found that it continued these activities. And Japan does it by using special permit, “for purposes of scientific research”, in authorizing whaling activities in Southern Ocean Sanctuary by relying on the Article VIII of the ICRW.
  • Australia tried to establish the fact that whaling program of Japan (JARPA II) is violating international law. It tried to bring into the notice that the sole purpose of JARPA II is continued whaling.
  • And the special permit under Article VIII of the ICRW authorizes whaling for “for purposes of scientific research” which is not the case with Japan.
  • Japan after terminating JARPA in 2005, commenced (JARPA II) which in itself is subject to proceedings. This program envisages taking of double number of whales than under JARPA.
  • The Court does have the jurisdiction in this matter by the reason of declarations made by Australia and Japan under Article 36 (2) of the statute of the court.  

ARGUMENTS BY THE RESPONDENT:

  • Japan in its counter memorial stated that the Court does not have jurisdiction to decide upon the present case and therefore, only as an alternative Japan discusses the merits of arguments given by Australia.
  • Japan has always acted in conformity with obligations under the ICWR and there has been no violation of Article VIII because the article gives the right to the contracting governments to grant such permits.
  • In 1997, when scientific methodology applied under JARPA was questioned, Australia recognized the program legal under the ICWR. Now it is seen arguing upon the dynamic interpretation of provisions of the ICWR.

DECLARATION BY NEW ZEALAND:

  • Under Article 63, paragraph 2, of the statute of the Court, New Zealand submitted a Declaration of Intervention in Whaling in the Antarctic (Australia v. Japan).
  • Based on the preliminary observations it was found that Japan was breaching its obligations in proposing as well as implementing the Second Phase of JARPA and the same can’t be justified by applying Article VIII of the ICWR.

IMPORTANT CONVENTIONS AND ARTICLES CITED:

  • Japan’s Research Program in the Antarctic (JARPA) (1) is a program that started in 1987 with the objective to estimate the biological parameters in order to better the stock management of minke whales in the Southern Hemisphere. This program tried to elucidate the part played by whales in the ecosystem of Antarctica and also the adverse effects on cetaceans because of environmental change.

Japan’s Research Program in the Antarctica Second Phase (JARPA II) was started in 2005 with the objective to monitor and improve the management procedure for whales stocks. It also tries to model the competition amongst the species of whales.

  • The International Convention for the Regulation of Whaling (ICRW) (2) was signed on 2nd December, 1946 in Washington DC. This convention aimed at setting out the IWC procedures in order, to establish regulations with respect to development, conservation, and effective utilization of whale resources.

Article VIII, paragraph 1 (3): “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”.

Paragraph 10 (e) (4): “Notwithstanding the other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and thereafter shall be zero. This provision will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits”.

Paragraph 10(d):Notwithstanding the other provisions of paragraph 10 there shall be a moratorium on the taking, killing or treating of whales, except minke whales, by factory ships or whale catchers attached to factory ships. This moratorium applies to sperm whales, killer whales and baleen whales, except minke whales”.

Paragraph 7(b):In accordance with Article V(1)(c) of the Convention, commercial whaling, whether by pelagic operations or from land stations, is prohibited in a region designated as the Southern Ocean Sanctuary. This Sanctuary comprises the waters of the Southern Hemisphere southwards of the following line: starting from 40 degrees S, 50 degrees W; thence due east to 20 degrees E; thence due south to 55 degrees S; thence due east to 130 degrees E; thence due north to 40 degrees S; thence due east to 130 degrees W; thence due south to 60 degrees S; thence due east to 50 degrees W; thence due north to the point of beginning. This prohibition applies irrespective of the conservation status of baleen and toothed whale stocks in this Sanctuary, as may from time to time be determined by the Commission. However, this prohibition shall be reviewed ten years after its initial adoption and at succeeding ten year intervals, and could be revised at such times by the Commission”.

Paragraph 30: “A Contracting Government shall provide the Secretary to the International Whaling Commission with proposed scientific permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them. The proposed permits should specify: (a) objectives of the research; (b) number, sex, size and stock of the animals to be taken; (c) opportunities for participation in the research by scientists of other nations; and (d) possible effect on conservation of stock. Proposed permits shall be reviewed and commented on by the Scientific Committee at Annual Meetings when possible. When permits would be granted prior to the next Annual Meeting, the Secretary shall send the proposed permits to members of the Scientific Committee by mail for their comment and review. Preliminary results of any research resulting from the permits should be made available at the next Annual Meeting of the Scientific Committee”.

  • Article 63 of Statute of the International Court of Justice (5): 
  1. “Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.
  2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it”.

Article 36(2): “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

  1. the interpretation of a treaty;
  2. any question of international law;
  3. the existence of any fact which, if established, would constitute a breach of an international obligation;
  4. the nature or extent of the reparation to be made for the breach of an international obligation.”

ANALYSIS:

  • After the exhaustive study and analysis of the statute, it was stated by the Court that this issue does fall within the jurisdiction and Australia is right in approaching the Court for the same.
  • It was found that JARPA II did qualify as a “scientific research” program but on pondering over the usage of lethal methods, the Court stated that this program was not for the purposes of scientific research  and Japan violated certain obligations under ICWR(6).
  • The Court while interpreting the Article VIII emphatically stated that though states can give special permits on request but that permission cannot solely depend on the State’s perception. In the same vein, the Court emphasized on two elements of the phrase for purposes of (1) scientific research (2) are cumulative
  • In light of the possible implications of the conclusion, the Court ordered Japan to revoke its ongoing JARPA II because it was breaching various provisions of the schedule (aforementioned) of the convention.  

DECISION:

  • The court unanimously held that it had jurisdiction to decide upon the application filed by Australia.
  • The Court found that by granting special permits in pursuance of JARPA II, Japan has not acted in accordance with the paragraph 10(e), (d) and paragraph 7(b) of the schedule of ICWR.
  • It was decided that Japan had complied with the obligations pertaining to paragraph 30 of the schedule of ICWR.
  • The Court found that special permit granted by Japan related to JARPHA II does not fall with the Article VIII, paragraph 1 of the International Convention for the Regulation of Whaling (7).
  • The Court held that Japan ought to revoke licence, permit or extant authorization granted in relation to JARPA II and subsequently refrain from any other further permits.

CONCLUSION:

  • The case on this subject has introduced much needed standards of reasonableness while permitting whaling exercises under the ICWR. However, there remains ambiguity on applications of decided parameters.
  • The Court in its interpretation of “for purposes of scientific research” provides a limited scope for the governments that want to pursue whaling programs scientifically.
  • Nevertheless, it is a landmark decision as it is more protective of the habitat of whales and tries to make policies in sync with environmental needs.

SOURCES:

  1. Scientific Contribution, The Institute of Cetacean Research, (June 24, 2020, 3:31 PM), https://www.icrwhale.org/scJARPA.html
  2. The International Convention for the Regulation of Whaling, Jagran Josh, (June 23, 2020, 2:41 PM), https://www.jagranjosh.com/general-knowledge/the-international-convention-for-the-regulation-of-whaling-1441622869-1
  3. The Responsibility of Research, The Institute of Cetacean Research, (June 23, 2020, 4:45 PM), https://www.icrwhale.org/responsibility.html
  4. Classification of Stocks , 1946 International Convention for the Regulation of Whaling,(June 24, 2020, 2:45 PM), http://library.arcticportal.org/1863/1/1946%20IC%20for%20the%20Regulation%20of%20Whaling-pdf.pdf
  5. Statute of the International Court of Justice, The international Court of Justice, (June 22, 2020, 2:21 PM), https://www.icj-cij.org/en/statute
  6. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), The International Court of Justice, (June 24, 2020, 5:45 PM), https://www.icj-cij.org/en/case/148
  7. Summary of the Judgment of 31 March 2014, The International Court of Justice, (June 23, 2020, 6:45 PM), https://www.icj-cij.org/files/case-related/148/18160.pdf

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