FACTS OF THE CASE
Japan and Australia are among the countries that are signatories to the International Convention for the Regulation of Whaling of 1946 ("ICRW"). [1]The provisions of the Convention are contained in the annexed Schedule, which can be amended by the International Whaling Commission ("IWC") by way of a three-fourths majority vote, but a state that objects within the time limit is not bound until it withdraws the objection later on. It should be noted that in 1982, the IWC placed a zero-catch limit "moratorium" on commercial whaling (See Schedule para. 10(e)). Japan objected to the moratorium, but it lifted the objection in 1986. In 1994, the IWC established the Southern Ocean Sanctuary, which bans commercial whaling in its territory (See para. 7(b)). Japan objected to the establishment of the Sanctuary only for Antarctic minke whales and did not withdraw its objection. Therefore, Japan is still bound by the prohibition of commercial whaling in relation to all species except for Antarctic minke whales.
Japan promptly invoked Article VIII just after the moratorium was established by conducting “JARPA[2]” (1987–2005) and hunting approximately 6,800 Antarctic minke whales, which is a huge number compared to only about 840 whales hunted in the previous 31 years globally for scientific purposes. The meat of the hunted whales was sold in Japan. Japan started another program, “JARPA II[3],” which was launched in 2007-2008, in which the researchers hunted 850 Antarctic minke whales, 50 fin whales, and 50 humpback whales at an indefinite time of year, even though only a few whales were hunted in some years. International Whaling Commission urged Japan to end this program repeatedly in 2005 and 2007, but Japan ignored the demands, stating the requests do not hold any binding power. Australia represented its stance against Japan one-on-one, but later sent an aide memoire in 2007 to more than thirty-three countries. Further International Whaling Commission discussions failed to deliver results. Later, when Australia concluded that no possibilities except for filing an application to the court of justice remained on 31 May 2010 for Japan, New Zealand invoked the intervention based on Article 63(2) of the International Court of Justice statute.
STATUTORY AND TREATY PROVISIONS INVOLVED
The most important element of the case was the provision in Article VIII (1) ICRW[4], which allowed for special research permits that were not subject to the provisions of the Convention. Other important aspects were Schedule provisions 10(e) (no commercial catch limit), 10(d) (moratorium on factory ship?), 7(b) (Southern Ocean sanctuary), and 30 (requirement regarding Scientific Committee); Articles V and VI ICRW (regarding amendments and non-binding recommendations); and Article 36(2) ICJ Statute on jurisdiction considering the “exception (b)” of the declaration of Australia excluding maritime delimitation disputes and Article 63(2) regarding New Zealand’s intervention.
ISSUE RAISED
1. Did the dispute fall within the maritime delimitation exception in Australia’s jurisdictional declaration?
2. Is a state’s characterisation of whaling as “scientific research” under Article VII (1) wholly self-judging, or subject to objective review by the court?
3. Did JAPRA II’s actual design and implementation satisfy the applicable standard?
ARGUMENTS FROM BOTH THE PARTIES
In the case of jurisdiction, Japan maintained that the dispute involved waters associated with Australia's disputed claim to the Antarctic territory, which meant that the maritime delimitation exception applied. Australia claimed, however, that there was no delimitation issue. The Court agreed with Australia and found the jurisdiction to exist unanimously.
In terms of the interpretation, Australia argued that Article VIII is a narrow exception requiring a strict, objective approach; real research must have a clear aim, require little killing, and undergo peer review. Japan maintained that it is the granting country that has the primary discretion and that such discretion can be reviewed only in cases of bad faith because of the two purposes of the Convention, conservation and industry. The Court, however, took a middle ground, interpreting the clause in such a way that it implies that genuine scientific research must be conducted and that the use of lethal methods must be appropriate to the successful fulfilment of the aim of this research.
In the consideration of the case, Australia pointed to the fact that the sample sizes of JARPA II were nearly doubled without any justification, that there were many viable alternatives to using lethal methods that had not been studied, and that the difference between how many whales were planned for killing and how many were actually killed was immensely large.
Japan claimed that the program had real aims, that lethal sampling (e.g., stomachs, age information) was needed scientifically, that the Scientific Committee had assessed the plan, and that shortcomings were due to practical/diplomatic restrictions, rather than faults in the design itself. The Court concluded that lethal sampling was justified in some cases, but that Japan never looked into non-lethal options, that the sample size methodology was not clear, and that the difference between the targeted and actual numbers, the open-ended time frame, and the lack of science showed that the program had not been properly designed for its objectives.
JUDGMENT OF THE COURT
The judgment was passed on 31 March 2014; the ruling was unanimous. The Court decided with a 12-4 vote that Japan’s permits for JARPA II do not meet the requirements of Article VIII (1) and that the country violated Article Schedule Sections 10(e), 10(d), and 7(b) regarding the minke whale. The Court decided by a 13-3 vote that Japan satisfied all procedural requirements of Article Schedule Section 30. Japan was ordered to repeal all current permits for JARPA II with a decision of 12-4; however, the Court did not prohibit Japan from granting permits in the future for the program. Judges Owada, Abraham, Bennouna, and Yusuf dissented from the findings of the majority. Judge Cançado Trindade would prefer a stricter interpretation of Article VIII, while Judge Keith wanted to know if Japan’s decisions could be verified objectively.
RATIO DENDI
A genuine scientific nature of a whaling program is necessary, but not enough for the application of the Article VIII (1) exception because the killing of whales must be reasonable in relation to the objectives alleged by the program itself. This can be assessed by various other factors such as sample size, methodology employed, difference between the number of whales that were supposed to be killed and the actual number of victims, study duration and results, etc. The legal issue is in this assessment as well because it is to be decided by the court rather than being left to the discretion of the state, which issues the special permit.
PERSONAL OPNION
The ruling represents a major development in the area of assessing self-judging treaty exceptions: it manages to avoid both alternatives, treating Article VIII as non-reviewable and obliging the Court to be involved in whether marine biological research is conducted. The precedent is important for other treaties featuring similar state-determined exceptions. The actual impact of the judgment was limited: Japan substituted JARPA II for "NEWREP-A," and then exited the IWC in December 2018, engaging openly in commercial whaling in its waters but terminating Antarctic whaling in the process, meaning that Japan evaded the judgment rather than complied with it. The dissenting opinions pose a legitimate institutional question: is an ordinary court able to define what is "reasonable" with respect to science, or does it risk replacing state discretion that Article VIII provides with judicial adjudication? Overall, the judgment makes it clear that "scientific research" cannot be taken as a label allowing for commercial activities, but it also reveals the limitations of international adjudication in cases of a state choosing to abandon the treaty rather than comply with it.
Reference
[1] International Convention for the Regulation of Whaling, Washington, 2 December 1946,
161 UNTS 74. Australia ratified the Convention on 1 December 1947, and it entered into force
for Australia on 10 November 1948; Japan lodged its notice of adherence on 21 April
1951, and it entered into force for Japan on the same day.
[2] The whaling program is conducted pursuant to permits granted by the Japanese Government to the Institute of Cetacean Research, an organisation established under Japanese law
[3] In 2008, humpback whales were downgraded from “Vulnerable” (species threatened
with global extinction) to “Least Concern” (species evaluated with a low risk of extinction)
on the IUCN Red List of Threatened Species, although two sub-populations have been
upgraded to “Endangered”: see http://cmsdata.iucn.org/downloads/cetacean_table_for_
website.pdf
[4] IWC/M10/SWG 5: http://www.iwcoffice.org/_documents/commission/future/IWC-M10-
SWG5.pdf