23 April 2014
On 31st March 2014, the International Court of Justice delivered its long-awaited judgment in the Whaling in the Antarctic case between Australia and Japan concerning the legality of the whaling activities of the latter in the Southern Ocean.

Judgment: Whaling in the Antarctic (Australia v Japan: New Zealand intervening), ICJ Judgment of 31 March 2014.

The Court’s finding that Japan was indeed in breach of its obligations arising from the International Convention for the Regulation of Whaling (ICRW) is certainly welcomed, though the ICJ could have elaborated more on aspects concerning the interpretation of this Convention. In this post, I will present an overview of the reasoning of the ICJ, and offer some comments concerning the significance and the potential impact of the judgment for whaling in general.

Issues before the ICJ

The main issue before the ICJ was whether JARPA II (Phase II of the Japanese Whale Research Programme under Special Permit in the Antarctic) was a programme ‘for purposes of scientific research’ within the meaning of article VIII of the Convention. Article VIII para. 1 provides:
‘any contracting government may grant to any of its nationals a special permit authorising that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to other conditions as the Contracting Government things 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’.

Following the decision of the International Whaling Commission on a moratorium on commercial whaling in 1982, whaling ‘for purposes of scientific research’ is one of the two reasons that whaling is permitted within the framework of the Convention (the other being aboriginal whaling). Australia argued that JARPA II did not fall under this provision, and that Japan was thus in breach of three substantive obligations under the Schedule – an integral part of the ICRW:

  1. ‘The obligation to respect the moratorium setting zero catch limits for the killing of whales from all stocks for commercial purposes (para 10 (e))
  2. obligation not to undertake commercial whaling of fin whales in the Southern Ocean Sanctuary (Para 7 (b))
  3. Obligation to observe the moratorium on the taking, killing or treating of whales, except minke whales, by factory ships or whale catchers attached to factory ships (Para 10 (d))’ (para. 48).

Scope and standard of review

The ICJ admitted that article VIII gives the state issuing the permit discretion, but it clearly pronounced that ‘the question whether the killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific research cannot depend simply on that state’s perception’ (para. 61). The ICJ thus found that it had the power to review the programme, and adopted an objective standard of review based on the scope and purpose of JARPA II with a focus on whether ‘in the use of lethal methods, the programme’s design and implementation are reasonable in relation to achieving its state objectives’ (para. 67).

Review and evidence

The elements the ICJ took into consideration in the evaluation of the purpose of the programme and the reasonableness of its design and implementation were identified as follows:
‘Decisions regarding the use of legal methods, the scale of the programme’s use of lethal sampling, the methodology used to select sample sizes, a comparison of the target sample sizes and the actual take, the time frame associated with a programme, the programme’s scientific output, the degree to which the programme coordinates its activities with related research projects’ (para. 88).

The ICJ found that the decision to use lethal methods was not unreasonable per se, but it found fault with the lack of ‘analysis of the feasibility of non-lethal methods as a means of reducing the planned scale of lethal sampling in the programme’ (para 137). The ICJ specifically referred to IWC Resolutions and guidelines calling upon states to consider non-lethal methods, but also the testimony of expert witnesses concerning the availability of such research techniques in the light of the JARPA’s objectives.

The ICJ conducted a thorough examination of the determination of species-specific sample sizes by JARPA II, based on evidence submitted by the parties and expert witnesses. It highlighted the lack of transparency and limited information in JARPA II, and stressed that
‘in the context of article VIII … the evidence regarding the selection of a minimum sample size should allow one to understand why that sample size is reasonable in relation to achieving the programme’s objectives, when compared with other possible sample sizes that would require killing far fewer whales’ (para. 195).

It further relied on the unjustified differences in sample sizes between JARPA and JARPA II despite the similarities in their objectives, and the discrepancy between the targets and the actual take which according to the Court suggested that ‘that the target sample sizes are larger than are reasonable in relation to achieving JARPA II’s stated objectives’ (para. 212). Further evidence casting doubt on JARPA II’s purpose for scientific research were: its open-ended time frame, its limited scientific output of JARPA II and the lack of cooperation with other research institutions.

Violation of obligations

Having found that JARPA II did not fall under article VIII, the ICJ examined whether Japan was in breach of other provisions of the IWC. The ICJ avoided the characterisation of the JARPA II activities as commercial whaling, but stated that ‘the three Schedule provisions are clearly intended to cover all killing, taking and treating of whales that is neither ‘for purposes of scientific research’ under article VIII, paragraph 1, of the Convention, or aboriginal subsistence whaling under paragraph 13 of the Schedule, which is not germane to this case’ (para. 229). The ICJ argued that there is no undefined whaling activity which would fall outside the scope of the Convention and that any such interpretation ‘would undermine its object and purpose’ (para. 229). The ICJ thus found that Japan was in breach of the three substantive provisions of the Schedule as mentioned above, and ordered it to revoke any authorisation, permit or licence in relation to JARPA II and refrain from such activities in the future.

The ICJ also concluded that Japan was not in breach of article 30 of the Schedule concerning the procedural requirement to provide the Scientific Committee with appropriate information so as to allow it to review proposals under article VIII. This finding – albeit in line with a narrow reading of the requirements of this provision – may deprive the Scientific Committee from a more enhanced role; such a role could contribute to a more cooperative approach to article VIII with the view to avoiding potential breaches and disputes as the one before the Court (see comments by Judge ad hoc Charlesworth).

Some comments on the significance and impact of the judgment

It had been hoped that the judgment would contribute to some clarification of the scope of research whaling, but also that it would provide some insights on the broader debate over conservation of whales and whaling which would facilitate the negotiations in the IWC. The ICJ indeed clarified the first point, but refrained from taking a stand on broader issues concerning conservation of whales.

The approach adopted by the ICJ with respect to the scope and standard of review is commendable. The judicial review of state discretion on objective standards beyond the (vague) examination of abuse of right or bad faith is important for the effective implementation of the IWRC. The dissenting judges stressed the discretion of the state issuing the permits, and argued that the ICJ’s role should be restricted in assessing whether the state in question has acted in good faith (Judge Owada and Judge Abraham) which should also be presumed and only rebutted by hard conclusive evidence. The ICJ was thus criticised of assuming the role appropriate for the bodies created by the Convention (the IWC and the Scientific Committee) (Judge Bennouna, Judge Owada, Judge Yusuf).

However, following the Pulp Mills case, the ICJ demonstrated its willingness to engage with an assessment of scientific evidence. The ICJ relied on the submissions of the parties and the testimony of expert witnesses in its objective assessment of the reasonableness of the design and implementation of JARPA II, and avoided questions that were a matter of scientific evaluation. In this respect, it clarified that it was not ‘passing judgment’ on the scientific merit or importance of the objectives – nor on whether the ‘design and implementation of a programme are the best possible means of achieving the stated objectives’, but the focus of its review was the reasonableness of the design and implementation in relation to its stated objectives.

In this way, the ICJ provided a framework within which any research whaling should be conducted in the future under article VIII. Nevertheless, despite the thorough examination of the ICJ, these factors may still leave broad discretion to the state engaged in research whaling as it is unclear how they may be applied in different circumstances. It was however important that the Court noted that ‘it will look to the authorising state, which has granted special permits, to explain the objective basis for its determination’. This authorising state thus has a duty to ensure that the design and implementation of its programme can be objectively and scientifically justified with respect to achieving the research objectives, and to give due regard to IWC resolutions and guidelines. With respect to lethal methods for research whaling, the ICJ found that they were in line with article VIII, but needed to be justified on the basis of specific objectives and taking into account the availability of non-lethal methods.

With respect to the interpretation of article VIII, the ICJ pronounced that it should be interpreted in line with the purpose and context of the ICRW (para. 55) but neither restrictively nor expansively (para. 58). However, it did not discuss whether new developments concerning the conservation of whales and environmental principles such as the precautionary principle have had any impact on the interpretation of the Convention and article VIII, especially with regard to the use of lethal methods. In fact, the ICJ took particular care not to generalise the discussion with respect to the debate and impasse in the IWC on commercial whaling and the future of conservation of whales. It observed that
‘in applying the … standard of review, it is not called upon to resolve matters of scientific or whaling policy. The Court is aware that members of the international community hold divergent views about the appropriate policy towards whales and whaling, but it is not for the Court to settle these differences. The Court’s task is only to ascertain whether the special permits granted in relation to JARPA II fall within the scope of Article VIII, paragraph 1, of the ICRW.’

This issue was addressed by a number of judges in their separate or dissenting opinions. Judge Yusuf argued that this provision should be interpreted in line with new developments and amendments so as to ‘reflect a shift in attitudes and societal values towards the use of legal methods for whaling in general’. Judge ad hoc Charlesworth also argued that article VIII should be read in line with resolutions on research methods adopted by consensus by the IWC which support a restrictive interpretation of article VIII and the precautionary approach supporting the use of lethal methods only as ‘last resort in scientific research programmes under article VIII’. Judge Cançado Trindade’s separate opinion was particularly enlightening. He argued that the limited scope of article VIII is dictated by ‘a gradual move away from unilateralism and towards multilateral conservation of living marine resources’. He stressed the nature of the IWRC as an evolving instrument that should be interpreted in line with a conservation-oriented approach and the principle of prevention and the precautionary principle. These principles ‘are to inform and confirm any programmes under special permits within the limited scope of article VIII of the ICRW Convention’.

Dr Sophia Kopela is a lecturer in law at Lancaster University Law School. Her specialisation lies in international law of the sea, international environmental law and public international law. She has contributed articles and papers in international journals and conferences. She is the author of Dependent archipelagos in the law of the sea (Martinus Nijhoff/Brill, 2013)

You can find out more about Sophia’s research at http://www.lancaster.ac.uk/law/people/sophia-kopela

Image credit: Australian Customs and Border Protection Service