International Convention for the Regulation of Whaling - moratorium in the Southern Ocean sanctuary - scientific research - use of expert scientific evidence - objective assessment of reasonable exceptions.

Author:Rolland, Sonia E.

International Convention for the Regulation of Whaling--moratorium in the Southern Ocean Sanctuary--scientific research--use of expert scientific evidence--objective assessment of reasonable exceptions

WHALING IN THE Antarctic (Australia v. Japan: New Zealand Intervening). At International Court of Justice, March 31, 2014.

The International Court of Justice (ICJ or Court) decided, by a 12-4 majority, (1) that the whaling program conducted by Japan in the Antarctic Ocean was in breach of its obligations under the International Convention for the Regulation of Whaling (ICRW or Convention). (2) Relying in substantial part on expert testimony submitted by the parties, the Court found that the activities conducted under the program were not "for purposes of scientific research" as required by the treaty (paras. 227,247(2)). While the judgment provoked four written dissents (as well as six other separate opinions and one declaration), it represents an important, if somewhat conservative, precedent in the Court's consideration of international environmental issues.

The ICRW and its governing body the International Whaling Commission (Commission) were created in 1946 "to provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry." (3) The Commission is authorized to set limits on commercial and aboriginal whaling. In 1982, it imposed a commercial whaling moratorium by setting the quota levels for catches of all whale species at zero in its binding Schedule. (4) Nevertheless, ICRW Article VIII(1) allows a state party to "grant to any of its nationals 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 subject to such other conditions as the Contracting Government thinks fit."

Pursuant to that authority, Japan instituted a program in 2005 to permit scientific whaling that included lethal "sampling" of various species (fin, humpback, and minke whales) in the Southern Ocean Sanctuary (the Japanese Whaling Research Program under Special Permit in the Antarctic, Phase II, known as "JARPA II"). Before the Court, Australia challenged the legitimacy of that program, contending that because it allowed the taking of whales in large numbers, it amounted to a thinly veiled attempt to sustain a whaling industry in breach of the moratorium (5) and raised issues of good faith. In response, Japan claimed that the program was consistent with conservation and management techniques authorized by the ICRW to ensure the sustainable exploitation of whales. (6)

The ICJ accepted jurisdiction based on the parties' respective declarations under the "optional clause" in Article 36(2) of the Court's Statute (paras. 41,247(1)). It rejected Japan's argument that the case raised an issue of exploitation of a disputed maritime area, a matter that Australia had excluded from the Court's jurisdiction (paras. 32-35). New Zealand was allowed to intervene (para. 12) and largely supported Australia's submissions.

On the merits, the case presented several areas of tension. First, the parties projected very different understandings of the ICRW's objectives. Second, the parties differed on the degree of scrutiny the Court could exercise over a state's decision to grant a permit under Article VIII. Last, the decision hinged on a factual inquiry into the nature of Japan's whaling practices and whether they comported with the requirements of a scientific program.

The ICJ acknowledged that the object and purpose of the ICRW must inform the analysis of Article VIII, but it stopped short of deciding what that might be. Ultimately, it found that the scientific research requirement of Article VIII was a goal in itself, distinct from competing interpretations of the Convention's object and purpose (para. 58). This step was critical to the majority's reasoning, and it proved controversial to the judges who penned separate opinions.

The Court found that even though the ICRW gives states some discretion in authorizing a permit, the activity in question must still conform to an objective standard comporting with the "scientific purpose" laid out by Article VIII (paras. 60-61). The crux of the case, then, was whether JARPAII was designed "for scientific purposes." The Court ultimately distinguished between "scientific research," which it found unnecessary to define, and the requirement that a program benefiting from a permit be destined "for purposes of" scientific research.

Regarding the meaning of "scientific research," the Court rejected the four criteria proposed by Australia's expert that a scientific program must be characterized by "defined and achievable objectives ...; 'appropriate methods' ...; peer review; and the avoidance of adverse effects on stock" (paras. 74, 86). Rather than formulating alternative criteria, the Court sought areas of agreement between the parties in an analytical move akin to stipulations. These included the requirement that "scientific research should proceed on the basis of particular questions" (para. 77) and that "scientific research must avoid an adverse effect on whale stocks" (para. 85). As for "scientific purposes," the Court required that "a programme's design and implementation [be] reasonable in relation to its stated scientific objectives" (para. 88). Without...

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