The Whaling Dispute in the South Pacific: An Australian Perspective

Author:Ruth Davis
Position:Member of Australian National Centre for Ocean Resources and Security ( 'ANCORS'); lecturer in the Faculty of Law at University of Wollongong. BEc/LL.B./LL.M.(Sydney).
Pages:419-447
SUMMARY

In May 2010 Australia commenced litigation against Japan in the International Court of Justice over the legality of Japanese scientific whaling in the Southern Ocean. This article considers the background to the litigation, the basis of Australia’s opposition to whaling, and the grounds upon which Australia is mounting its challenge. The interpretation of the 1946 International Convention for the ... (see full summary)

 
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REGIONAL FOCUS & CONTROVERSIES
The Whaling Dispute
in the South Pacific:
An Australian Perspective
Ruth Davis
In May 2010 Australia commenced litigation against Japan in the International
Court of Justice over the legality of Japanese scientific whaling in the Southern
Ocean. This article considers the background to the litigation, the basis of
Australia
s opposition to whaling, and the grounds upon which Australia is
mounting its challenge. The interpretation of the 1946 International Convention for
the Regulation of Whaling and the operation of the International Whaling
Commission are considered in light of the precautionary principle. The article
concludes that Australia
s success depends upon a broad reading of the Convention
that takes into account its objects and purposes, as well as wider developments in
international law. Any guidance that the International Court of Justice can provide
on the modern interpretation of this now dated Convention is to be welcomed.
Keywords
International Convention for the Regulation of Whaling, Scientific
Whaling, Japanese whaling, Southern Ocean, International Whaling
Commission, Whaling Litigation
1. Introduction
On May 31, 2010, Australia instituted legal proceedings against Japan before the
KFBJM3)3122*  419
* Member of Australian National Centre for Ocean Resources and Security (ANCORS); lecturer in the Faculty of Law
at University of Wollongong. BEc/LL.B./LL.M.(Sydney). The author would like to thank Quentin Hanich for
comments on an earlier draft of this paper. The views expressed, and any errors or omissions, are those of the author.
The author may be contacted at: rdavis@uow.edu.au/Address: University of Wollongong, Faculty of Law, Wollongong,
NSW 2522, Australia.
International Court of Justice (ICJ) on the question of Whaling in the Antarctic.
1
The
litigation concerns the second phase of Japans Whale Research Program under Special
Permit in the Antarctic (JARPA II).
2
Since Australia ended commercial whaling in the
late 1970s, it has actively campaigned to put an end to the practice internationally.
Australia opposes whaling on a number of grounds and has been dismayed by the
escalation of whaling under scientific permit since the introduction of the moratorium in
1982. Australia has worked extensively through the International Whaling Commission
(IWC) to pursue its conservation agenda and in particular to promote the use of non-
lethal techniques for scientific research while seeking an end to lethal scientific research.
As diplomatic efforts have so far failed to have any impact on the conduct of JARPA,
3
Australia has instituted proceedings in the ICJ to enforce various international legal
obligations which, in Australias view, are not being met by the continuance of the
research program.
The Australian arguments may broadly be divided into two: those based on the 1946
International Convention for the Regulation of Whaling (ICRW),
4
and those based
upon other international environmental law agreements. This paper will focus upon the
former of these two lines of argument. In relation to the ICRW, the application argues as
follows. First, Japan is in breach of its obligation under Paragraph 10(e) of the ICRW
Schedule to observe in good faith the zero catch limit in relation to the killing of whales
for commercial purposes.Second, Japan is in breach of its obligation under Paragraph
7(b) of the ICRW Schedule to act in good faith to refrain from undertaking commercial
whaling of humpback and fin whales in the Southern Ocean Sanctuary.Third, the
JARPA II program cannot be justifiedunder the scientific whaling provision in
Article VIII of the ICRW.
5
In addition, the application argues that Japan is in breach of
multiple obligations under the Convention on International Trade in Endangered
420 
1
See
Application Instituting Proceedings (hereinafter Australian Application),
available at
http://www.haguejusticeportal.net/
Docs/Court%20Documents/ICJ/Australia%20against%20Japan_Applications%20instituting%20proceedings.pdf (last
visited on Oct. 1, 2011).
2
See
JARPA II Research Plan,
available at
http://www.icrwhale.org/JARPA IIResearchPlan.htm (last visited on Oct.
1, 2011). The case concerns JARPA II, Japans Antarctic research program, although the application notes that in
Australias opinion, the northern hemisphere JARPA II program raises similar concerns and is also in breach of
Japans international obligations.
See
Australian Application, para. 34.
3Within the IWC, both Japan and Australia have participated in the discussions of the Small Working Group on the
Future of the IWC in 2008.
See
IWC, Future of the IWC: Meeting of the Small Working Group on the Future of the
IWC and associated documents,
available at
http://www.iwcoffice.org/commission/future.htm (last visited on Oct. 1,
2011). Australia has also appointed a Special Envoy on Whale Conservation whose role is to engage with Japan
with a view to progressing Australias position on Japans special permit whaling programs.
See
Australian
Application, para. 33.
4The International Convention for the Regulation of Whaling of 1946, entered into force on Nov. 10, 1948.
5
See
Australian Application paras. 36-37.

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