Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)
OVERVIEW OF THE CASE
Proceedings were instituted on 31 May 2010 by Australia, which accused Japan of pursuing “a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’)”, in breach of obligations assumed by Japan under the 1946 International Convention for the Regulation of Whaling and of other international obligations for the preservation of marine mammals and the marine environment.
In the Judgment it rendered on 31 March 2014, the Court first found that it had jurisdiction to entertain the case, rejecting Japan’s argument that the dispute fell within the scope of a reservation contained in Australia’s declaration recognizing the Court’s jurisdiction as compulsory. It then turned to the question of the interpretation and application of Article VIII of the 1946 Convention, paragraph 1 of which states that the parties “may grant to any of [their] nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research”.
With respect to the interpretation of that provision, the Court first observed that, although Article VIII gives discretion to a State party to the Convention to reject the request for a special permit, 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. In the view of the Court, the two elements of the phrase for purposes of (1) scientific research (2) are cumulative.
As regards the application of that same provision, the Court indicated that JARPA II could broadly be described as a “scientific research” programme. It then turned to the question of whether it was for purposes of scientific research that lethal methods were used. To answer that question, it examined whether the programme’s design and implementation were reasonable in relation to achieving its stated research objectives. The Court considered that the evidence before it did not establish that such was the case. It concluded that the special permits issued by Japan for the killing, taking and treating of whales in connection with JARPA II were not granted “for purposes of scientific research” pursuant to Article VIII, paragraph 1, of the 1946 Convention.
The Court then turned to the implications of that conclusion, in light of Australia’s contention that Japan had breached several provisions of the Schedule annexed to the said Convention. Having found that Japan had indeed breached some of the provisions invoked (namely the moratoriums on commercial whaling and factory ships, and the prohibition on commercial whaling in the Southern Ocean Sanctuary), it considered the question of remedies. Since JARPA II was an ongoing programme, it ordered Japan to revoke any extant authorization, permit or licence to kill, take or treat whales in relation to JARPA II, and to refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that programme.