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Whaling: Australia takes Japan to the ICJ

Whaling: Australia takes Japan to the ICJ

On 1 June 2010 Australia commenced proceedings in the International Court of Justice (ICJ) against the Government of Japan. The proceedings allege that the second phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) is contrary to the International Convention for the Regulation of Whaling (ICRW). To establish whether allegations made by Australia are true, it is necessary to outline the laws on international whaling and the arguments advanced by each party. However, whilst the Court is still deliberating the issue, I hope to persuade you of the argument advanced by many in the international community, i.e. that JARPA II is commercial whaling in disguise.

What type of ‘whaling’ is conducted under the JARPA II programme?

The research plans announced in 2005 for JARPA II outlined both lethal and non lethal techniques. Non lethal techniques commonly include tissue biopsy sampling to obtain skin blubber samples. A specially designed crossbow is used to fire a dart at the mammal which penetrates the skin on impact and emerges back out again, floating to the surface of the water. Non lethal processes such as this are undisputed by Australia and are actually advocated by the International Whaling Commission (IWC) as an alternative to the whale killing permits issued by Japan under JARPA II. Other methods include analysis of faeces and mucus, both obtainable without utilising lethal techniques.

The ICJ case arises from discrepancy over what exactly constitutes research purposes, a concept that is largely undefined

Lethal capture of whales includes firing a harpoon with an explosive tip to pierce the body to a depth of around 12 inches, the harpoon then detonates inside the whale. The movement of the whale, combined with possible sea swells, can make accurate harpooning and a single lethal shot extremely difficult. Thus, killings at sea are often inhumane and, in reality, can cause a brutal death or serious injury to the mammal if it escapes.

Annual lethal sampling proposed by JARPA II for ‘full scale’ research is as follows:

  • 850 Antarctic minke whales
  • 50 humpback whales
  • 50 fin whales

In other words, that’s 950 whales killed per season since the summer of 2005/2006: 7,600 whales by the summer of 2013/2014.

What is the law on whaling?

In 1982 the IWC declared a moratorium on commercial whaling which is still in place today.

Lethal whaling as an activity in itself is not, however, in breach of the 1942 Convention and can be carried out for research purposes. Thus, the research programme is argued by the Japanese Government to be mandated by Article VIII ICRW. This states that Japan, and other members of the IWC, can issue permits for the killing of whales for research purposes.

Australia’s case is that the sheer scale of the operation cannot be solely necessary for research purposes and that there must be a commercial motive.

Australia contends that Japan has breached:

(a) the obligation under paragraph 10 (e) of the Schedule to the ICRW to observe in good faith the zero catch limit in relation to the killing of whales for commercial purposes; and
(b) the obligation under paragraph 7 (b) of the Schedule to the ICRW to act in good faith to refrain from undertaking commercial whaling of humpback and fin whales in the Southern Ocean Sanctuary.

Simply put, Australia has accused Japan’s research programme of masking commercial whaling, which is contrary to the Convention. Japan refutes this claim, submitting that Australia’s legal argument is fuelled by emotions and intuitions rather than science.

What evidence is there that JARPA II is not purely for research purposes?

Firstly, DNA analyses have found whale meat from researched whales for sale on the Japanese market. This whale meat is regarded by Japan as a ‘by-product’ of the research, sold to cover the costs of the programme, and thus, it is not regarded as commercial whaling. However, the timing and scale of the JARPA programmes suggests otherwise.

The IWC moratorium on commercial whaling was originally opposed by Japan, who subsequently faced threats of trade sanctions from the US and loss of fishing rights in US waters. They withdrew their opposition and, coincidentally, launched their first research programme, JARPA I, in the same year. Additionally, in the 31 years prior to JARPA I and the moratorium, the Japanese had killed just 840 whales for scientific research: an average of 27 whales per year.

Unsurprisingly, the Australian Government argues that the scale of the JARPA II programme (950 whales killed per year) cannot be justified under Article VIII, as it presents a risk to targeted species. However, prima facie, this is a problematic argument to advance, as Article VIII gives a great deal of discretion to the ‘Contracting Government’ who is to grant research permits ‘as it thinks fit.’ Arguably, if the legislators of the ICRW were concerned about commercial exploitation, they would have at least defined the term ‘commercial whaling’ or drafted a narrower provision.

Nonetheless, it has been possible for Australia to demonstrate that the lethal techniques used by Japan have failed to observe objections…

In addition to this, Australia has used the history of international whaling regulation in their submissions. This demonstrates that the 1946 Convention diverged from previous logic, putting into place ‘a new and real system targeting conservation recovery.’ Conservation is submitted by Australia to be contained in the object and purpose of the Convention, rejecting that the two elements are fragmented, an argument advanced by Japan. This enables Australia to exhibit the notion that the sheer scale of the killings cannot be in line with the conservational intentions of the Convention, even if JARPA II was considered by the Court to be for research purposes only. In support of this, Australia submitted that no evidence presented by Japan actually provided a scientific explanation for the necessity of JARPA II to be launched, after 26 years of ‘lethal data’ had already been collected.

What effect would a decision in favour of Australia have?

The factor that makes this case so interesting is that it is entirely unclear which way the judgment will fall. Legally, the argument for Japan is strong, with the ICRW seemingly conferring wide discretion on the Japanese Government. A practical look at the launch of JARPA II suggests the killing of whales is not mainly for research purposes at all. The scale of lethal capture alongside alternative methods available has raised questions that have been left unanswered by Japan.

The first submission made by Japan in this case is that the Court lacks jurisdiction to hear the claims. Thus, if the Court ruled in favour of Australia and ordered a cease of the JARPA II programme, it would stop the operation in practice, but is likely to be rather futile in changing the opinion of the Japanese Government.

The impression is that there is a market in Japan not only for whale meat, but for whale products too, as a part of everyday life. Whale meat is regularly eaten in Japan and is included in many school lunches across the country. Products from whales are also available for purchase, including narwhal tusks and objects made out of whale bone. Consequently, a ruling against the JARPA II programme would not automatically make the Japanese authorities view the whale killing permits granted by it as illegal. Instead, a ruling against the Japanese Government could see the end of JARPA II coincide with the launch of a new programme of research to comply with the ruling.

This raises wider questions around the ability of international law and its institutions to deal with what is potentially a case arising from a clash of cultures. Thus, it remains to be seen how the Court will interpret the ICRW in light of this and whether commercial whaling, however it is disguised, will ever truly cease.

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