Australia v Japan: New Zealand Intervening
| Jurisdiction | Derecho Internacional |
| Judge | Donoghue,Charlesworth,Yusuf,Owada,Sebutinde,Abraham,Cançado Trindade,Bhandari,Tomka,Gaja,Sepúiveda-Amor,Skotnikov,Xue,Bennouna,Greenwood,Keith |
| Court | International Court of Justice |
| Date | 31 March 2014 |
International Court of Justice
Order on Declaration of Intervention of New Zealand.
(Tomka, President; Sepúiveda-Amor, Vice-President; Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Gaja, Sebutinde and Bhandari, Judges; Charlesworth, Judge ad hoc)
(Tomka, President; Sepúiveda-Amor, Vice-President; Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde and Bhandari, Judges; Charlesworth, Judge ad hoc)
Whaling in the Antarctic
Environment — Marine environment — Whaling — International Convention for the Regulation of Whaling, 1946 — International Whaling Commission — Schedule to the Convention — Moratorium on commercial whaling — Article VIII of the Convention — Exemption for whaling carried out for purposes of scientific research — Dispute between Australia and Japan concerning Japan's continued pursuit of large-scale whaling programme — Japanese Whale Research Program under Special Permit in the Antarctic (“JARPA II”) — Effect on whale stocks — Whether Japan breaching its obligations under the Convention — Whether Japan breaching its other international obligations for preservation of marine mammals and marine environment
Treaties — Interpretation — International Convention for the Regulation of Whaling, 1946, Article VIII(1) — Scope of Article VIII(1) — Whether special permits granted by Japan in connection with Japanese Whale Research Program under Special Permit in the Antarctic (“JARPA II”) “for purposes of scientific research” — Object and purpose — Whether restrictive or expansive interpretation justified — Discretion of State Party — Standard of review — Whether, in using lethal methods, programme's design and implementation reasonable to achieve stated objectives — Task of Court — Meaning of phrase “for purposes of scientific research” — Schedule to Convention — Duty of cooperation with International Whaling Commission and Scientific Committee — Whether Japan breaching its obligations under International Convention for the Regulation of Whaling, 1946 — Whether Japan breaching its other international obligations for preservation of marine mammals and marine environment — Remedies
International Court of Justice — Intervention — Article 63(2) of Statute conferring right to intervene as a non-party in proceedings — Declaration of Intervention filed by New Zealand in case between Australia and Japan regarding whaling — Whether Declaration fulfilling requirements of Article 63 of Statute and Article 82 of Rules — Whether Declaration admissible
International Court of Justice — Jurisdiction — Optional clause — Reservations — Reciprocity — Whaling dispute between Australia and Japan — Whether falling within Australia's reservation
Summary:2The facts:—The International Convention for the Regulation of Whaling (“the Convention”) was adopted in 1946 in response to concerns that commercial whaling was threatening the survival of whale stocks. The Convention did not prohibit whaling but provided for the establishment of the International Whaling Commission (“the IWC”) and empowered the IWC to adopt measures for the regulation of whaling which were to be added to the Schedule to the Convention. Australia, Japan and New Zealand were at all relevant times parties to the Convention.
In 1986, the IWC exercised its powers to adopt a moratorium on commercial whaling. However, Article VIII(1) of the Convention3 provided that, notwithstanding anything contained within the Convention, a contracting government could grant to a national 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 other conditions as thought fit. The killing, taking and treating of whales in accordance with this Article was thus exempt from the operation of the Convention and excluded from the moratorium. Each contracting government had to report to the IWC all authorizations granted. Special permits could be revoked at any time. The Scientific Committee of the IWC reviewed and commented on special permits.
Following the adoption of the moratorium, Japan commenced the Japanese Whale Research Program (“JARPA”) under which Japan authorized the taking of specified numbers of minke whales in the Antarctic. The first phase of this programme, JARPA I, commenced in 1987. Special permits were issued under Article VIII(1) of the Convention. According to Japan, JARPA was a research programme to estimate the stock size of the southern hemisphere minke whale and provide a scientific basis for resolving divergent views concerning commercial whaling. In 2005, Japan submitted a research plan for a second phase, JARPA II, to the Scientific Committee. JARPA II contemplated the lethal sampling of Antarctic minke, fin and humpback whales in addition to non-lethal methods. Its research objectives were described as monitoring the Antarctic ecosystem, modelling competition among whale species, clarifying temporal and spatial changes in stock structure, and improving management procedures for minke whales. It was a long-term programme without a specified termination date and operated within the Southern Ocean Whale Sanctuary. JARPA II commenced before the final review by the Scientific Committee of the earlier JARPA programme.
Under JARPA II, the intended take of minke whales was 850 (plus or minus 10 per cent) each year and of fin and humpback whales 50 of each species. Japan maintained that such takes would be too small to have any negative effect on stocks. In practice, the take of each species was considerably smaller. During the first year of JARPA II, 853 minke whales and 10 fin
whales were taken.4 Thereafter the take declined. An average of 450 minke whales were taken each year, with much smaller numbers in 2010–11 and 2012–13. Eighteen fin whales were killed over the first seven seasons (including the ten taken in the first season) and in subsequent years the take was never more than three in any one year. No humpback whales were killed, although permits were issued which authorized their taking.5On 31 May 2010, Australia instituted proceedings against Japan claiming that JARPA II breached the Convention. Australia contended that JARPA II was not a programme for purposes of scientific research within the meaning of Article VIII(1) of the Convention. Moreover, according to Australia, Japan had breached three provisions of the Schedule to the Convention which restricted the killing, taking and treating of whales: the obligation to respect zero catch limits for the killing for commercial purposes of whales from all stocks (para. 10(e));6 the factory ship moratorium (para. 10(d));7 and the prohibition on commercial whaling in the Southern Ocean Sanctuary (para. 7(b)).8 Australia also alleged that Japan had violated the obligation to make proposed permits available to the IWC before they were issued, in sufficient time to permit review and comment by the Scientific Committee, and with respect to the items to be included in proposed permits (para. 30 of the Schedule). Australia sought an order that Japan refrain from authorizing or implementing any special permit which was not for purposes of scientific research, immediately cease implementation of JARPA II and revoke any authorization, permit or licence that allowed its implementation. Australia maintained that the jurisdiction of the Court was established on the basis of the declarations made by both States under Article 36(2) of the Statute of the Court.9
Japan denied that the Court had jurisdiction. It maintained that the case concerned the exploitation of disputed maritime areas and thus fell within the reservation to Australia's declaration which, in accordance with the principle of reciprocity, was applicable to Japan in proceedings brought against it by Australia. In addition, Japan denied all claims, responding that JARPA II fell within the exemption provided in Article VIII(1) of the Convention and that its procedural obligations had been met.
Order of 6 February 2013
On 20 November 2012, New Zealand filed a Declaration of Intervention in the case as a non-party to proceedings, pursuant to Article 63(2) of the Statute.10 New Zealand's intervention related to the points of interpretation
at issue in the proceedings, in particular in relation to Article VIII of the Convention.11 By availing itself of the right to intervene, New Zealand recognized that the construction given by the judgment would be equally binding upon it. While neither Australia nor Japan objected to the admissibility of the Declaration, Japan was concerned that “serious anomalies” would arise in relation to the principle of equality between the Parties should New Zealand be admitted as an intervenerHeld (unanimously):—The Declaration was admissible.
(1) Intervention based on Article 63 of the Statute was an incidental proceeding that constituted the exercise of a right. Unlike an application by a State for permission to intervene under Article 62 of the Statute, its only object was to allow a third State not party to the proceedings to present its observations on the construction of the convention in question. The status of intervener was not conferred automatically; the declaration had to fall within the provisions of Article 63 of the Statute and Article 82 of the Rules12 (paras. 6–8).
(2) Japan's concerns related to procedural issues regarding the equality of the Parties to the dispute rather than to conditions for admissibility. Since intervention under Article 63 of the Statute was limited to submitting observations on the construction of the Convention, and the State did not become a party to the proceedings, it could not affect the equality of the Parties (paras. 9–18).
(3) Since New Zealand had met the requirements of Article 82 of the Rules and its Declaration, to which the...
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